Industrial Court of New South Wales CITATION: Matthew Costin v Subway Development of NSW-ACT Pty Ltd [2006] NSWIRComm 196 APPLICANT: Matthew Costin PARTIES: RESPONDENT: Subway Development of NSW/ACT Pty Ltd FILE NUMBER(S): IRC 6387 of 2003 CORAM: Haylen J CATCHWORDS: Unfair contract - Industrial Relations Act 1996 - s 106 - employment of field consultant by franchise operator - work involves travelling long distances - some work performed out of normal hours and at weekend - representation that a fully maintained motor vehicle to be supplied in addition to contract salary - representation denied by respondent - respondent deducts lease payments for vehicle from applicant's salary claiming agreement to salary sacrifice - motor vehicle owned by respondent - running expenses of motor vehicle fully met by respondent - held representation made by respondent as alleged by applicant - contract unfair in its operation - applicant entitled to recover lease payments deducted by respondent - level of deduction unclear on evidence - respondent's evidence accepted that about $700 per month deducted for lease payments - allegation of excessive overtime - claim for payment of overtime - evidence falls short of establishing average weekly hours claimed by applicant - contract varied to include allowance for extensive travelling and spread of hours required to perform duties - claim for superannuation payable at nine per cent within total remuneration package of $32,500 - claim made out - respondent to meet shortfall in superannuation payments - contract varied HEARING DATES: 08/05/06, 09/05/06, 10/05/06, 11/05/06, 12/05/06 DATE OF JUDGMENT: 06/16/2006 APPLICANT: Mr M J Heath of counsel SOLICITORS: Williams Love & Nicol LEGAL REPRESENTATIVES: RESPONDENT: Mr B Pluznyk of counsel SOLICITORS: JP Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 16 June 2006 Matter No IRC 6387 of 2003 MATTHEW COSTIN v SUBWAY DEVELOPMENT OF NSW/ACT PTY LTD Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2006] NSWIRComm 196 BACKGROUND 1 In July 2000, Matthew Costin commenced employment with Subway Development of NSW/ACT Pty Ltd as an operations consultant/field officer. Mr Costin had been a casual employee at the Canberra City Subway store since June 1994 performing work in various capacities including supervisor, night manager and store manager. In 1996, he enrolled at the University of Canberra and in December 1999 was awarded the degree of Bachelor of Information Management. 2 Mr Costin was initially paid $32,500 total remuneration for the work as an operations consultant. The duties of the position required him to travel extensively from Canberra in order to visit and evaluate a large number of Subway outlets. In 2000, there were 27 such sites that grew to 30 by 2001 and 34 by 2002. His duties also involved assisting in opening new outlets. During July 2004, he was provided with a new Holden Commodore by his employer in order to perform these duties. Monthly deductions of approximately $700 were made from his salary in relation to the provision of a motor vehicle although the employer paid for all running costs. 3 Because of the wide area being serviced by Mr Costin, in approximately August 2001 arrangements were made for Mr Costin to move to Sydney to better perform the work. This involved Mr Costin in additional expense and it was agreed that his salary would be increased to $40,000. Mr Costin had earlier received an increase to $35,000 from 1 February 2001. Mr Costin resigned his employment at the end of November 2002. 4 During the latter part of his employment, Mr Costin experienced periods of illness and also became concerned at the terms of his employment. By his own calculation, he was working excessive hours from between 61 hours per week to over 70 hours per week without payment of overtime. He then became aware that the vehicle he was driving to perform his employer's work was in fact registered in the name of his employer, although he was paying the monthly lease or an equivalent figure to the monthly lease. After making further enquiries in November 2003 concerning the basis of his employment, Mr Costin commenced proceedings against Subway Development of NSW/ACT Pty Ltd under s 106 of the Industrial Relations Act 1996. The Application, as amended, sought variation of the contract so as to prevent the respondent from deducting lease payments or running expenses from the applicant's remuneration and to provide that, if the respondent breached that provision, then on the termination of the contract of employment the respondent would pay the applicant all car lease payments in relation to the vehicle as deducted from his remuneration and all money deducted in relation to the running expenses of the vehicle that were deducted from his remuneration. Further variation was sought directing the respondent to pay 9 per cent superannuation per year, such sum to be paid on the remuneration package and, if the respondent failed to pay superannuation then the respondent was to pay the applicant the earnings which would have been earned if the superannuation had been paid in the relevant financial year. The contract was to be varied to require the applicant to be paid for all work performed beyond 40 hours per week. 5 In formulating the relief sought, the applicant calculated that the reimbursement of money deducted from his remuneration on account of motor vehicle lease payments by the respondent amounted to $15,210.67. There was a claim of underpayment of superannuation in the sum of $3,595.06 plus interest of $72, and a claim for payment of overtime of $43,907.95. In relation to overtime, Mr Costin had calculated that, between June and December 2000, he was working an average total of 61 hours per week; between 1 January 2001 and 31 December 2001 he was working an average of 70.5 hours per week; from 1 January 2002 to 30 November 2002 he was working an average of 70.6 hours per week. THE EVIDENCE 6 Jim Dimas and Nick Dimas were directors of the respondent and were known to Mr Costin since he commenced work with the Canberra Subway outlet in 1994. Jim and Nick Dimas had performed monthly evaluations of the Canberra City store during periods when Mr Costin was the store manager and he had received guidance from them. Mr Costin said that in approximately May 2000, Mr Dimas met him at the Canberra store and said that he had heard that Mr Costin was interested in a position as an operations consultant. Mr Costin confirmed his interest in the position and was told by Jim Dimas that the position reported to the two directors and that he would become the evaluator for all Subway stores in southern New South Wales. Mr Dimas said that, in that position Mr Costin, would become responsible for compliance and growth of all the stores they serviced, that he would be based in Canberra and he would be provided with a vehicle, a laptop and a mobile telephone. There would be training at head office in Brisbane subject to meeting the requirements of training but the position was a full-time permanent position. Jim Dimas told him that the respondent's office was in Liverpool and that the salary being offered was $32,5000. Mr Costin said that he thought it was below industry standard because that was approximately what was received by a store manager but Jim Dimas told him "You get a car". Mr Costin then said: "Okay, so I get a car, a laptop, a mobile and I can work out of Canberra?". Jim Dimas confirmed those matters and Mr Costin told him that he was interested in the position. Jim Dimas said that they should discuss the role more fully with Nick Dimas in Sydney. Mr Costin was asked to start on Monday 3 July 2000 as a preferable date because it was the beginning of the new financial year. 7 In approximately July 2000, Mr Costin said he attended a meeting with Jim and Nick Dimas at the respondent's office in Liverpool, was given a tour of the office and the group then drove to four Subway stores near the office. Mr Costin stayed at Jim Dimas' home while they visited a number of other stores. On approximately 4 July 2000, Mr Costin said he had a conversation with Jim and Nick Dimas where Jim Dimas provided him with the employment contract which Mr Costin read. Mr Costin then raised an issue about reimbursements of expenses because it did not mention telephone or travelling expenses. Jim Dimas then altered the clause on his computer. Mr Costin also raised an issue about the motor vehicle and asked for clarification of the provision that said the respondent would be responsible for all running expenses and associated costs saying: "I assume that means the lease of the vehicle". Jim Dimas replied: "Nick is arranging the car. Can you speak to him - he handles all the car arrangements through Suttons". They then had a discussion about the territory, the goal of growth of the stores over a period of one and a half to two years and the nature of the team to be involved in the work. It was anticipated that when the territory was developed another person would be required. 8 In approximately mid-July 2000 Mr Costin was provided with a Holden Commodore by Nick Dimas while they were in Wollongong. When Mr Costin originally came to the Liverpool office in early July 2000 he had a conversation with Jim Dimas, (with Nick Dimas present) in relation to the car. Jim Dimas told him that he could keep his own car and the respondent would give him an allowance for the running of the car or he could have a company car. Mr Costin replied that he would take the company car as he did not think his car would cope with the long distances to be travelled. Some days later Mr Costin had another discussion with Jim Dimas where he said that he would like a company vehicle and asked what vehicles were available. Jim Dimas told him that Nick and Jim Dimas had Commodore VT models and that Mr Costin was to see Nick Dimas because he had contacts with Suttons Holden. At about this time, Mr Costin attended Suttons Holden in William Street Sydney with Nick Dimas and chose a 2000 Olympic Edition Commodore. Nick Dimas had gone into an office with a sales representative of Suttons but Mr Costin did not know what occurred. He was later asked by Nick Dimas if he wanted any accessories and there was a discussion about including tinted windows. There were further discussions and before leaving the office the sales representative said to Mr Nick Dimas that he would ask the finance company to send him all the details. Although Mr Costin signed some form he understood it to be a request for tinted windows and in relation to a security immobiliser. He did not recall signing any financial documents in relation to the car. 9 When Mr Costin received his first month's pay, he was paid in cash by Nick Dimas but was not provided with any payslip or payroll advice. At the time of receiving that pay, he did not have a vehicle and he did not understand that any money was being taken from his pay for the vehicle. He accepted the pay and made no assessment whether it was correct in relation to the agreed salary. There was no payslip or other advice setting out or breaking down items such as superannuation, taxation or any other deduction. Later, Mr Costin was paid by cheque but again did not receive a payslip with any particulars of deductions. He said that, after approximately four months of working and receiving payslips from the respondent, he calculated that the salary appeared to be well under $32,500 per annum although he still had not received any breakdown of the salary and deductions by reference to payslips or pay advices. Mr Costin raised the matter with Nick Dimas asking about the difference between the net amount paid and the gross amount he was meant to receive. Nick Dimas told him that the amount given to him was determined by Jim Dimas after payment for the car. That was the arrangement that they had. Mr Costin said that this was the first time there was any reference made to Mr Costin paying any money for the car. Approximately a week after this conversation, Jim Dimas said to Mr Costin that he had agreed to pay off the lease of the car. After that conversation, Mr Costin said that his clear impression was that he was paying the lease payments for the car and he thought to himself he was paying off his own vehicle. He was not concerned about this because the total package still amounted to what he had agreed to in salary. He did not raise the issue again as he thought that, while he was not earning much, at least he was getting a car. 10 In approximately June 2002, Mr Costin said he realised that, as a result of the work, the car had now travelled over 160,000 kms and the value of the vehicle to him would be greatly reduced. He wanted to know what was the final lease payment on the car to assess how much he would obtain selling the car. Because he did not have a copy of the lease he obtained one from the finance company: it was then that he realised that he did not own the car and had never owned it and that he was paying from his own salary the cost of the vehicle that he did not own. There appeared to be no record that he was the owner of the car or was ever going to own it. 11 Mr Costin said that he was concerned about the arrangements for the car and raised the matter with Nick and Jim Dimas at the end of July 2002 at the Sydney office. Mr Costin asked why the lease payments on the car were not in his name. Jim Dimas stated that that was what was agreed to. Another employee Mr Turski was also an operations consultant and Jim Dimas said he was getting more money on paper because he was using his own car and did not have a lease agreement. Mr Costin said he became embarrassed and, at the time, did not pursue the matter. However, he worried that he was paying over $700 per month for an asset that was not his. 12 In relation to the arrangements for the motor vehicle, Mr Costin denied that there was ever any mention of salary sacrifice when the issue of a company car was discussed. 13 The contract that Mr Costin said he signed was in copy form and annexed to his affidavit. That document was dated 30 June 2000 and was said to commence from 3 July 2000. By Clause 2, Mr Costin was appointed to the role of "operations consultant" with a term commencing on 3 July 2000 and terminated in accordance with the provisions of Clause 11. Clause 11 provided for termination by the company where there was a breach by the employee and, under Clause 11.3, either the company or the employee could terminate the agreement for any reason by giving three months' notice. Under Clause 4.3, the applicant was to work such hours and days as were reasonably required for the discharge of his functions under the agreement and was to devote substantially the whole of his time and attention during normal business hours to the discharge of his role. He was also to undertake such travel as was reasonably required for the proper discharge of his duties. 14 Under Schedule A, the duties and responsibilities of the position were set out. The objective was stated to promote the growth, prosperity and consistency of the Subway franchise in New South Wales and the Australian Capital Territory by ensuring that each Subway store adhered to the standards, policies and procedures as outlined in the Subway Operations Manual. Under the heading "Overview" it was stated that the position was responsible for providing operational guidance and direction to franchisees upon opening a new store; conducting monthly store evaluations as required; implementing Subway policies and programmes and providing ongoing support and assistance to franchisees through regular store visits and various means of communication. The duties and responsibilities were then set out in detail under 17 dot points, including the duty of identifying general operational deficiencies in stores and recommending appropriate remedial action, analysing store profitability and assisting franchisees to maximise their opportunities, promoting and assisting franchisee growth within the system, assisting and encouraging franchisees in completing local store marketing plans and being available to consult with franchisees at all times. In Clause 4.2 entitled "Other Duties", the contract provided that the respondent may require the employee to perform other duties reasonably connected with the role of operations consultant or could reduce the duties as the company saw fit. The additional duties could include administrative tasks, franchise sales, lease negotiations, equipment ordering and construction consulting in relation to Subway franchises in the territory. 15 Under the heading "Remuneration", the employee was to be paid the total remuneration in various components as set out in Schedule B. Schedule B set out a total remuneration of $32,500 but no other figures were set out as components in that Schedule. There was provision for setting out individual sums for base salary, employee's superannuation at 9 per cent base salary, salary sacrifice superannuation, motor vehicle benefit value, estimated fringe benefit tax and other benefits. However, no figures appeared against each of these items. Fringe benefit tax was to reduce the value of the total remuneration and the company was to reimburse the employee for all travelling and other out-of-pocket expenses including telephone expenses properly incurred in discharging the duties of the position. In Clause 5.3 entitled "Motor Vehicle", the following was provided: If a motor vehicle benefit is included in the Total Remuneration, the company will supply the motor vehicle and will be responsible for all running expenses including maintenance and associated costs. 16 Two other provisions of the contract were considered during the course of the case. Clause 9 dealt with superannuation and stated that the company would "... contribute 9 per cent of the base salary by way of superannuation on behalf of the officer". Under Clause 10 entitled "Other Employment", it was provided that the employee would not, without the previous written consent of the employer, be employed in any paid office, undertake any business as principal or agent or engage in or continue in private practice other than in connection with the officer's duties under the agreement. It was specifically provided that consent would not be unreasonably withheld and that the consent could be the subject of reasonable conditions imposed by the respondent. 17 Mr Costin's duties involved evaluation of each of the stores operated under the franchise arrangement with the respondent in his territory. In 2000, this involved some 27 sites, in 2001 there were 30 sites and in 2002 there were 34 sites. Until approximately April 2000, Mr Costin visited each store at least once a month but at that time another operations consultant Mr Turski was appointed. After that appointment, Mr Costin became responsible for a reduced area and he continued to visit those stores at least once a month. He would visit a particular store more than once a month if there was a special event, for example, a grand opening, birthday sales, or staff training events or if a franchisee needed particular assistance. Mr Costin was required to complete a store evaluation form as well as supply a comprehensive written compliance report detailing areas where the store could further improve its operation and comprehensively addressing areas where the store had not complied with the Subway franchising system. Having completed the evaluation form and report, it was Mr Costin's duty to ensure the store owner, manager and employee in charge had a copy of those documents and had signed an evaluation signature log to evidence that the document had been received. There was an operations manual that contained a section dealing with restaurant evaluation compliance and that set out the procedures and other details in relation to the evaluation task carried out by Mr Costin. 18 Store openings involved a process including readying for the actual opening of the store, then two or three weeks later holding "a grand opening sale". There were written directions as to what was to be done by the consultant on the opening of a new franchise, including detailed instructions about the grand opening sale preparation. The details laid down what was to be the responsibilities of the franchisee five weeks, three to four weeks, two to three weeks and one to two weeks ahead of the grand opening sale. It was laid down that, during the first week of business, the date for the grand opening sale was to be determined and the budget set. It was said that it was very important that during the planning stages, the purpose of the sale be "first and foremost in every one's mind". The field consultant was to provide guidelines and recommendations to the franchisee to maximise the benefits of the sale. It was also important to provide the franchisee with a copy of the recommended steps and time frames so that all required tasks were completed in a timely manner. 19 Mr Costin had assisted with the opening of approximately 11 new stores and stated that, because new franchisees had little or no knowledge of the practical operation of the Subway system, most of the work and time spent in relation to the opening of a new store and the grand opening sale was performed by Mr Costin and not the new franchisee. 20 Mr Costin was also required to make arrangements for, and was to speak at seminars for potential franchisees, itself involving setting up, presenting and cleaning up after the event. From time to time, he also assessed, during the construction stage of a new store, the equipment, fixtures and fittings to see if they had been acquired correctly and installed in accordance with Subway's policy. Under the operation manual, he was to order smallwares and liaise with franchisees and co-ordinate delivery, order larger items such as freezers, display cases, &c, and co-ordinate deliveries and set up pricing standards. 21 In around March 2001, Mr Costin was required by the respondent to attend a ten day training course in Brisbane at the offices of Subway Systems. A few days after completing that training, Mr Costin had a conversation with Jim Dimas in which he told Mr Dimas that, at the course, he had been told by the international trainer for Subway USA (Didi Mahoney) that, even though Mr Costin reported to Mr Dimas, he was still required to take directions from Subway Systems. Mr Costin asked if that was so. Mr Dimas said to him: "You are to do whatever head office says you are to do". 22 Mr Batts and Ms Dair from Subway Systems, head office, would contact Mr Costin at least five times a week and ask him to resolve point of sale computer problems being experienced by the respondent's Subway franchisees. In his affidavit, Mr Costin gave other examples of cases where he had been asked by head office to assist in this way. From June to November 2002, the Subway software at all point of sale systems in each of the respondent's franchise stores had to be upgraded to allow automatic transmission of data to Subway USA's head office on a weekly basis. Mr Costin stated that 15 franchisees could not complete this task themselves due to a lack of technical understanding and he was required by Ms Dair and Mr Batts of Subway Systems to take day-to-day practical responsibility for this project for those franchisees. Each upgrade system took Mr Costin a minimum of an hour to complete, excluding travel time. Some upgrades took him up to three hours to complete if the first upgrade and data transmission had failed. 23 On occasions when the Help Desk operator at Subway Systems was not contactable or absent, franchisees would either be directed to Mr Costin by various Subway Systems personnel or they would call Mr Costin; often he was the first point of contact. Mr Costin did not regard it as an option to reject a franchisee's call for assistance; someone from the respondent's office would have to help them eventually. If a franchisee was unable to operate his till, the store would have trouble handling the customer traffic levels which would directly affect the store's income and, as a result, the respondent's and Subway System's income. If a store was unable to transmit its data, this affected the store's compliance rating within Subway Systems which, in turn, generated letters of non-compliance being sent to franchisees by Subway Systems. The more stores that became non-compliant, the worse the respondent's performance indicators became and, accordingly, problems with point of sale terminals were always a priority for Mr Costin - he was expected to attend to such problems regardless of the time of day and the length of time it would take to resolve. 24 In relation to the calculation of his work time, from January 2001 to November 2002, Mr Costin made calculations using a combination of his logbook entries, telephone records, bank records, the use of directions and distance estimates found on the Internet and factoring in breaks for safe travel at the rate of 10 minutes' break for every 100Kms travelled per day. Mr Costin generally would take a 10 minute break every 100Kms travelled. However, when time was short, he did not stop until his destination was reached. When he visited the Canberra, Albury and Wagga Wagga stores in one day and returned to Canberra, the trip would usually commence at 6.00 am and be completed at 11.00 pm. He said that hotels were at his expense until he could be reimbursed. The opportunity to stay overnight to break the trip was not always possible. In addition, on all such trips he was required to pay for his own food for which he was not reimbursed. 25 The basis of his calculations for the time worked between January 2001 and November 2002 were log entries, telephone records and bank records but that detail was not fully available to him in relation to the hours he worked during 2000. Mr Costin, however, estimated that, during that year, leaving special events out of the calculation, he worked for the respondent on an average of 41 hours per week plus an average of 20 hours per week travelling from store to store. He was not aware whether the respondent kept records in relation to the hours he worked and at no time during the course of his employment with the respondent did anyone on behalf of the respondent require him to keep records of the hours he worked, nor did they instruct him on how to keep records of the hours he worked. 26 At no time prior to November 2002 was Mr Costin ever provided by the respondent with a payslip in relation to his wages. Throughout his employment, he was paid wages by way of a cheque payable to "cash". On 7 November 2002, Mr Costin had a meeting with Jim and Nick Dimas during which he requested copies of payslips for the period July 2001 to October 2002 and other material relating to the terms and conditions of his employment. Mr Costin received an email in reply providing certain information relating to his wages. That reply was annexed to his affidavit. 27 In around May 2001, Mr Costin had a conversation with Jim Dimas asking if Mr Dimas could tell him how much superannuation he was getting each year. Jim Dimas told him that it was being looked after and that he would get back to Mr Costin. About three weeks later, Nick Dimas gave him some documents from the local Commonwealth Bank concerning a "Super Select" policy for him operated by Commonwealth Financial Services. Nick Dimas told him that these were for his superannuation fund and that he was to sign and return them. Mr Costin signed the necessary forms and returned them to Jim Dimas. 28 In or around late July 2001, Mr Costin received a letter from Commonwealth Financial Services providing information about his superannuation fund. That letter indicated that, according to the bank records, $1,716.71 was contributed by the respondent to his superannuation fund as at 9 July 2001. In or around January 2003, Mr Costin wrote to Commonwealth Financial Services requesting information about the employer's superannuation contributions made by the respondent to his superannuation fund. In a February response to that request, $1,716.71 remained the amount contributed by the respondent to Mr Costin's superannuation fund as at February 2003. Sometime between 12 February 2003 and 30 June 2003, the respondent made a further contribution to Mr Costin's superannuation fund of $1,981.46. According to information available to Mr Costin, the respondent made a total contribution of $3,698.17 to his superannuation fund. 29 In relation to salary increases, Mr Costin said that, in about June 2001, he had a conversation with Jim Dimas, who told him he had been doing well during the year and that they were going to increase his salary to $35,000 starting from 1 July. 30 From the time he commenced working with the respondent, Mr Costin lived in Canberra but by around July 2001, he had formed the view that, having regard to the fact that the majority of stores he had to visit were closer to Sydney than Canberra, it would be more efficient if he based himself in Sydney. In around August 2001 he approached Jim Dimas and told him that if he moved to Sydney it would not only save the respondent more time, but he could be more effective in his role. He would need to rent premises in Sydney and, considering any relocation to Sydney would save the respondent money on accommodation costs, he thought it was fair for the respondent to increase his salary accordingly. Jim Dimas said that he could understand that approach and that Mr Costin's salary would be increased to $40,000 in recognition of this change. Mr Costin said that he would move to Sydney some time that month. Jim Dimas said that the increase would commence on 1 September. By the beginning of September 2001, Mr Costin had moved to Sydney and remained there throughout the rest of his employment with the respondent. 31 Mr Costin made calculations by reference to the payslips eventually sent to him by the respondent. In breaking down those figures, he calculated that, between 1 July 2000 and 31 January 2001, he was being paid an annualised salary of just over $25,000. For the period from 1 February 2001 to 30 June 2001, he was paid an annualised salary of just under $30,000; for the period 1 July 2001 to 31 July 2001, he was paid an annualised salary of just over $28,000; between 1 August 2001 and 30 June 2002, he was paid an annualised salary of $31,700; and for the period 1 July 2002 and 31 October 2002, he was paid just under $32,000 per annum. There were also differences between the amounts described as "total base salary" on the payslips and the amounts entered as "base salary" in Mr Costin's group certificates. These differences seemed to amount to something over $11,000. 32 It was not until Mr Costin was provided with a copy of the respondent's Reply to the Summons for Relief that he came to see Schedule B to the employment service agreement claimed by the respondent to be the terms of the contract that he had entered. That document broke down figures for the component of the total salary but no-one had spoken to him about such figures. 33 Mr Costin said that he frequently felt ill during the first half of 2001. He sought medical assistance and consulted a cardiologist. He regarded his illness as being caused by the nature and hours of his work with the respondent and had not experienced the same illness before or after his employment with the respondent. At one point, he had actually returned to work, although he had a certificate for sick leave, because the respondent wanted certain records completed within a tight timeframe. 34 Mr Costin also formed the view, from his employment as a store manager, that store managers of Subway franchises in New South Wales were paid between $35,000 and $38,000 per annum. He also understood, from speaking to Mr Turski, engaged in similar duties to himself, that, in around December 2002, Mr Turski had received $35,000, and a motor vehicle at no cost to him. The motor vehicle was the vehicle which had been used previously by Mr Costin. 35 In oral evidence, Mr Costin said that, when completing evaluation forms, he tried to enter the times he commenced and left. There were time constraints but he tried to state his start and finishing times accurately. Sometimes the times were modified to fit the date: a report might not be completed on site but, using a notepad, he would type up the evaluation later and backdate it on the computer. The time work commenced was usually a time generated by his computer which recorded the time it was turned on. Sometimes there were difficulties in using the computer at an outlet. 36 Mr Costin had prepared a schedule for the years 2001 and 2002, showing the average weekly hours spent per month, the additional hours spent for special events with details of that special event, and a separate calculation for travel time required per week. During that two-year period, the lowest average weekly hours were 30, and the highest average weekly hours were 51. Special event additional hours had entries of 75 hours three times, 97 hours once, 92 hours once and 81 hours once. There were two entries of 16 and 20 hours, and six entries with less than 10 hours. Travelling time ranged between a low of 16 hours' average per week to a high of 28 hours' average per week. In relation to the special event additional hours, the three entries showing 75 hours were related to store openings as was the 97 hours, 92 hours and 81 hours entries. 37 Mr Costin explained that, under the Subway system, a store opening required 70 hours of support provided by the field consultant. If there was a lunch break or other work undertaken, it would not be recorded and he would usually spend all of the time in the store. He would not simply walk out when 70 hours were reached, but would continue on for the hours required. He would fill in a store opening hours logsheet indicating the time he arrived and the time he left each day for a store opening and recording the total hours of attendance each day. There were eight such logsheets in evidence dealing with store openings. The hours entered in the log usually represented the time Mr Costin spent in the store. There might be occasions when he left the store to purchase supplies required for the opening. A time such as that, off site, would nevertheless be included in the hours because it was related to the store opening. Some of the entries showed that he was working 17and a half hours a day, assisting in the opening of an outlet. In one such case, there were heavy lunchtime crowds and the starting times had to be very early to ensure there was sufficient bread and food available and that they would not run out. It also led to performing that same type of work well into the early hours of a morning. The entries were signed by the franchisee. In one store, Mr Costin slept overnight in a spare room upstairs in the store because it was easier for him to control what was going on in the store and to complete other work without leaving the site and having to return to it. 38 In cross-examination, Mr Costin accepted that he was evaluating no more than 30 stores per month, and that number was reduced when another person was employed. Mr Costin explained the use of his notepad and how entries had previously been done on hard copy evaluation forms. Sometimes he was under a time constraint because he would arrive at a location late in the evening, at 6.00 or 7.00 pm to find out what was happening during the dinner shift in circumstances where the shop would be closing within an hour. While he could have waited and returned the following day, he had other duties to perform, including training and development activities. 39 When Mr Costin was constructing his hours and time summary for attachment to his affidavit, he did not have a lot of the respondent's source documents and made certain assumptions, including a minimum 70 hours for opening of stores. He had made an estimate of travelling time since he was not required to keep a log of the times actually occupied in travelling between stores. He had used a website to obtain information about distances between various shops in southern Sydney and Canberra, Canberra to Albury, &c. Mr Costin said a trip to Albury across to Wagga and back to Canberra would usually entail him starting at 6 am and arriving home no earlier than 11 pm. 40 Mr Costin was closely cross-examined in relation to his store visits and store openings by reference to his mobile telephone records. It was put to him that a number of entries could not be correct as to the times of attendance because the mobile telephone records indicated that he was in another area. Mr Costin denied that he was not working but accepted that he may have been doing other work at the time. He adhered to the view that the times recorded were accurate as to the total time spent on each particular task although there could have been reasons for the task not being performed, or totally performed, on a particular day against which the entry was made. Mr Costin accepted the accuracy of the telephone records but, in a number of circumstances, was unable to say why he was not in the area recorded on the evaluation or opening logs. He suggested that there could be a variety of reasons he would leave a shop and, in some cases, he might have returned and, in other cases, the work would have been performed, but at a later time: in both cases, he stated that the hours recorded were nevertheless accurate. 41 Mr Costin explained that there was no direction given as to precisely when a store was to be evaluated and he had adopted an approach whereby, in the first half of a month, he would perform the other duties required of him under the contract and in the last half of a month, he would perform evaluations. He accepted that he did not have to perform the evaluations in that way and could have spread them out more evenly over the month. He also accepted that there were many days when there were no evaluations or openings conducted - they were the times when the other numerous duties listed in his contract were performed, including training and assisting franchisees in various ways. Again, Mr Costin clarified that on some occasions he was not able to complete or write up an evaluation on site and it was written elsewhere. The time spent on writing the reports would be factored into the original writing time and the time he left the store did not represent the time he actually left the store: it represented the time he spent preparing and working for that store. The time would be an accurate representation of the time he devoted to that store in preparing their work. When a report could not be completed at the site, it would have to be given to the franchisee on another day. In any event, his entries represented the time he spent performing work for that store but did not reflect the time he actually started at that store or left that store, nor did it represent the time he completed the task. 42 It was accepted by Mr Costin that, according to the Subway manual, evaluations were to be done in the store and, once completed, were to be signed by the franchisee. The field consultant was to hand a copy to the franchisee during the visit. While he accepted that was the approach in the manual, he did not follow that direction in all cases, although approximately 85 per cent of all evaluations were completed and handed to the franchisee on the day. 43 In relation to his estimates for the year 2000, where it was calculated that he was averaging 41 hours per week in duties plus 20 hours of travelling, Mr Costin was servicing between 28 and 30 stores and was spending approximately two and a half hours in each evaluation plus the usual travelling time. During 2000, there was a slight difference in the work because he was assigned to a store, for example, for a week at a time where he would concentrate his efforts in order to improve a location. There were follow-up visits to assess the progress in that store in the days and weeks thereafter. In 2000, he estimated his travelling time for the 28 stores to be 20 hours per week although it may have been less than that but not substantially less. It could have been up to five hours a week less than his estimate of 20 hours on average. For the time not specifically recorded, there were a number of duties to perform including duties in relation to pricing and this occurred for instance in November 2000 for three days solid and involved a lot of work. This was work that was done for all franchisees and was part of his duties to promote and assist franchisee growth and involved an analysis of store profitability. 44 In relation to the acceptance of employment with the respondent, Mr Costin said that in May 2000 he had indicated to Jim Dimas that he would accept the job but he did not begin his employment or know the terms of that employment until he met Jim and Nick Dimas on 3 July 2000 at their office. In discussion at the Canberra store, he had been told that the salary would be $32,500 per annum and he thought that was a lower starting salary than he could have expected had he stayed in the IT industry. In the May 2000 discussions, the provision of a car was mentioned in talks with Jim Dimas at the Canberra store. In a conversation on 3 July 2000, Jim Dimas said to Mr Costin that he could have either a company car or a car allowance. There was no discussion as to the details of the car in May 2000 and the offer was made with its basic components. 45 Mr Costin thought that in addition there were telephone conversations between May and July 2000 with Jim Dimas about the vehicle - it was not plausible that no such conversation took place in that period. When the car was discussed, Mr Costin was told it would be a Holden which was the only option he had ever looked into: that conversation was with Jim Dimas, however, he had no recollection of the details of that conversation. Mr Costin thought it most likely in these conversations that Jim Dimas would have provided him with the address of the respondent to attend on 3 July 2000 and all that was said about the car was that it would be Holden - there was no discussion about the make, model or any other terms. He assumed from the fact that Jim and Nick Dimas were driving Holden Commodores that he would be provided with the same vehicle. Mr Costin said he did not press Jim Dimas for details about the car because he was more interested in taking the job and focusing on the job he was going to take up. Mr Costin had assumed his employer was going to provide him with a car and was not about to make requests of this new employer at this early stage before he had started his new employment about the nature of the vehicle. 46 In these early discussions, Mr Costin said he viewed his employers with great respect. He realised that he was not going to proceed with a career in the IT industry so he was going to use his background knowledge of the Subway system in this new position. He knew that he would be conducting store evaluations and that he would need a vehicle to perform that task: he thought he would be given a car to perform that work. Mr Costin accepted that on 3 July 2000 there was a discussion about being provided with an allowance for using his own car and thought it would have been rude to confront his new employer by challenging them and by stating that they had promised him a new car. Jim Dimas had offered him an allowance or a company car and he had accepted the company car. Mr Costin also accepted that he received the car on about 12 July 2000. 47 When he had a conversation with Jim Dimas about the terms of the contract on or around 4 July 2000, Mr Costin had raised with Jim Dimas the clause in the contract dealing with motor vehicles and that the respondent would be responsible for all running expenses and associated costs. He raised with Jim Dimas his assumption that the clause in the contract would also cover the costs of the lease of the vehicle. Jim Dimas told him that Nick Dimas was arranging the car and was handling all the particulars with Suttons Motors. 48 The employment contract had been signed on the morning of 4 July 2000. Before the contract was signed there had been a conversation with the respondent about the type of car. That conversation took place with either Jim or Nick Dimas on 3 July 2000, probably at the Hoxton Park store. Mr Costin understood the reference to a company car meant a car that was owned by the company and not by him. Mr Costin expected to be the actual owner of the car when he found out he was paying a sacrifice from his wages for the vehicle. He did not expect to be the owner of the car when he commenced work because he expected the vehicle to be a company car. The contract that Mr Costin held showed a total remuneration of $32,500 with no mention of a car. He thought the contract on its face was clear that the company would supply him with a car and would be responsible for the costs of the car. There was nothing in the contract that mentioned that he was getting a car. Mr Costin agreed that there was no specific mention of the type of car on 3 July 2000 and that the details were discussed on 4 July 2000. The contract that Mr Costin held was not one that had been emailed to him prior to the meeting but was the document that was signed on morning of 4 July 2000. 49 In relation to point of sale technology, it was put to Mr Costin that was the responsibility of the franchisee and an item for which he had no responsibility. Mr Costin said the respondent or representatives of head office had not directed him to install or repair point of sale equipment but had asked him to assist. However, Mr Costin believed that it was his duty to assist the franchisee and this often happened when it was a new outlet and the person was inexperienced. He accepted that he had the option of rejecting calls for assistance especially in areas remote from where he was when he received the call for assistance, but thought it was part of his role to assist the franchisee. 50 In addition Mr Costin would take calls at the rate of three to four times per month from the Help Desk within the Subway system located in Brisbane. These calls would always be received within business hours. Sometimes franchisees called him outside of business hours about point of sale difficulties - he could possibly receive up to two such calls per week. The Help Desk calls were requests for assistance and Mr Costin always responded because there would still be a computer problem should he not try to solve it. The computer system played an important role in the overall Subway system and his role was to assist and support the franchisee. 51 In relation to the installation of computer programmes such as point of sale systems, Mr Costin had an arrangement with a commercial outlet known as E World and he was paid a fee calculated on the connection rate. Mr Costin said that he never asked a franchisee for payment but sometimes he had been given money: Mr Nicholson gave him $200 for servicing his point of service equipment. This amount of money was only taken after it was offered and Mr Nicholson had insisted that he take it. In approximately April or May 2002, Mr Costin reached an agreement on the installation of point of sale programmes and he contracted with E World to do that work himself. Some of that work was referred to him and other people informed franchisees that they could get help from Mr Costin. Two installations were performed outside of his territory at Port Macquarie and he used the company car to travel to and from those destinations. Those installations took a day and he took with him the computer systems to be installed and showed the franchisee how they operated. The basis of payment was $395 for commission, $700 for installation and $1,100 for both. Mr Costin also performed upgrades at Miranda for Mr Nicholson. There was no payment involved in this because it was part of his normal duties and it was not part of the $200 that Mr Nicholson had paid for work at his Cronulla outlet. 52 Mr Costin stated that he was not provided with payslips during his employment and although it did not cause problems, in November 2002, he had asked for a copy of his payslips. He was provided with a continuous computer printout by email which document was in evidence. During the course of Mr Costin's evidence, his counsel called for (and renewed the call for) the provision of the payslips that were "regularly" provided to Mr Costin by the respondent. Ultimately, nothing more was produced other than the email printout already in evidence and a similar version of that document. Mr Costin said that he had no payslips provided to him before that email although there were some payslips provided in the last few months before he resigned. 53 In relation to how he operated as a franchise consultant, Mr Costin said that sometimes he might take time in lieu when had worked for a lengthy period. He could take leave when he wished but he had to apply for it: other holidays were those observed as public holidays. During the period that he worked for the respondent, he mostly did not take holidays although he did go skiing with his mother at a time when there were concerns about his health and it was thought he needed a break from work. 54 Mr Costin was cross-examined as to the rates of pay of store managers but was unable to state precisely what they were earning although he thought he had a fairly accurate knowledge of their rates. 55 In re-examination, Mr Costin, while accepting that there were inconsistencies between log entries and his telephone records, said that nevertheless he had performed the work. For example, at Woden he had spent six days working there but may have been absent on one occasion looking for supplies. He was required to devote 70 hours to that store opening and had in fact put in 94 hours. Another example was Marrickville, where he was required to put in 70 hours for the opening but recorded 109 because the franchisee was not well prepared for the task - in fact, Mr Costin performed the staff training that was usually given by the franchisee. There, he was off site twice because there was a difficult point of sale terminal and he travelled home to obtain material to repair it. If he had not carried out the repair there would be no records of sales and the store would have had to manually record sales. In other examples he had been taken to in cross-examination Mr Costin thought there may be inaccurate entries and there were further checks that might have to be carried out but in relation to others he could not recall exactly what he was doing. 56 In relation to outlet openings, there was a lot of work to do especially for a new franchisee. Mr Costin would attend the site after construction was complete and sometimes suggested changes, go through the order checking supplies and uniforms and a number of matters. He carried out all the duties listed in his duty statement and did so for all stores. 57 In relation to the computer technology work, Mr Costin said he decided to perform this work as it provided a legitimate service to franchisees and ensured that they were in compliance with the Subway system. It also allowed him to make some extra money to pay his bills. Although his expenses were reimbursed, there was a gap between rendering an account and being paid and there were times when he did not have the money. 58 Jim Dimas was a director of the respondent. He denied having a conversation with the applicant in May 2000 at the Canberra store about a position of operations consultant: he had heard that Mr Costin was leaving that store and would be interested in working for the respondent. Mr Costin had confirmed these matters. At no time during the conversation was an offer made to the applicant but at the conclusion of the conversation Jim Dimas said that he would speak to Nick Dimas and, if "we create the position", he would call the applicant to set up a time and place to discuss it further. Sometime later, Jim Dimas spoke to the applicant and told him that the respondent was creating the operations consultant position and that they would like to interview him in Sydney. The applicant said he would attend at any time. 59 Jim Dimas thought that in approximately mid-June 2000 the applicant attended the respondent's offices in Liverpool and had a discussion with Jim and Nick Dimas. Jim Dimas told the applicant that the total package was $32,500 and the applicant made no comment. The three of them then visited Subway stores in the area and, while they were at Hoxton Park, Jim Dimas said to the applicant that he could keep his car or the respondent would give him an allowance, "... or if you want to make a salary sacrifice, we can give you a company vehicle". The applicant said he would take the vehicle and he would look around and tell them of his choice. Jim Dimas told him that Nick Dimas had the contact with Suttons Holdens. Sometime after this meeting, he emailed the applicant a draft Employment Services Agreement . 60 On 3 July 2000, the applicant attended the Liverpool offices of the respondent to commence employment. Jim Dimas asked the applicant if he was happy with the agreement. They then had a conversation and Jim Dimas changed Clause 5.3 of the Agreement. He then said to the applicant: "Once you have picked out your car we will be able to work out your motor vehicle benefit". 61 The applicant commenced employment on 3 July 2000 and, on about 12 July 2000, selected the vehicle the respondent was to provide to him. On or after 12 July 2000, the respondent created a document described as "Schedule B" which was an attachment to the Employment Services Agreement. A copy of that Schedule was in evidence. The applicant signed the Agreement incorporating Schedule B but Jim Dimas was unable to locate the signed Agreement. He noted that this occurred at an early stage in the development of the respondent and its recording system was not "completely established" and the respondent had since moved premises. The Employment Services Agreement referred to by Jim Dimas had a Schedule B with a total remuneration of $32,500 and three further entries under the sub-heading "Consisting of". Those further entries were: base salary $23,483.04; employer superannuation (at 8 per cent base salary) $1,878.64 and motor vehicle benefit value $7,138.32. 62 At no time during his employment did the applicant ever raise with the respondent that the salary paid was less than the agreed amount. Had the applicant made it known on about 25 July 2000 that he was paid less than the agreed rate, the respondent would have terminated the applicant's services. In October 2001 the applicant tendered his resignation, thanked Jim Dimas for everything and said he would serve out his three months. At the end of three months he asked to stay on to which Jim Dimas agreed. 63 Jim Dimas denied having a conversation with the applicant in about March 2001 in which the applicant said that, while training at head office in Queensland, he had been told that, even though he reported to the respondent, he was still required to take directions from Subway Systems which had been confirmed by Jim Dimas. Jim Dimas said that Subway Systems established policies, procedures and training for Subway agents such as the respondent. 64 The applicant was not responsible for the evaluation of every store listed during the entirety of his contract. Mr Turski was employed in October 2001 and, between the applicant and Mr Turski, were each responsible for about half the stores managed by the respondent. 65 In relation to point of sale duties, Jim Dimas said that at no time was the applicant authorised to carry out these duties nor had the respondent authorised the applicant to take instructions from another source, including Subway Systems. The respondent was not responsible for the point of sales system and that was a matter that arose between the franchisee and Subway Systems. During the applicant's employment, Jim Dimas raised with him that he had asked for a fee to service point of sales systems, that he was in breach of Clause 10 of the Agreement and that his action also placed in jeopardy the respondent's agreement with Subway Systems. Jim Dimas directed the applicant to cease such actions immediately to which the applicant responded by apologising and stating that it would never happen again. 66 In relation to the applicant attending seminars, these were arranged and conducted by Jim Dimas and the applicant did not address those seminars. The applicant was not required to speak to potential franchisees or to advise them on the steps to set up a new store. In relation to the applicant's expenses, these were reimbursed within a few days of being claimed and sometimes reimbursed on the same day. The applicant at no time indicated that he could not stay in a hotel because of financial considerations and if that matter had been raised, it could have been addressed by paying accommodation directly. In addition, Jim Dimas stated that the applicant had been provided with regular pay advices and PAYG summaries. 67 As to the applicant's superannuation, the respondent had not remitted the applicant's superannuation contributions for 2000-2001 to the Superannuation Fund. On 9 July 2001, the respondent remitted the applicant's superannuation payment for that year to the Fund. The payment made for 2000-2001 was $1,716.71. According to the respondent's records, the applicant accrued superannuation benefits totalling $5,143.44 during the term of his employment with the respondent. Total superannuation payments, however, made to the Fund on behalf of the applicant totalled $3,698.17. The underpayment was due to an administrative error and the respondent was prepared to pay that amount. The applicant's total remuneration was increased to $35,000 in February 2001. 68 In July 2001, the applicant informed Jim Dimas that he wished to relocate to Sydney which was agreed together with an increase in the applicant's total remuneration to $40,000 due to the higher cost of living in Sydney in comparison with Canberra. The salary increase was operative from 1 August 2001. 69 As to the applicant's complaint that he never understood how the respondent determined payments made to him, Jim Dimas stated that at no time during his employment did the applicant ever question or dispute the amounts that he had been paid: he was provided with pay advice slips and an annual PAYG payment summary. It was not until after commencing these proceedings, some 12 months after terminating his employment, that the respondent became aware of any dissatisfaction by the applicant in this regard. 70 As at 3 July 2000, the draft Employment Service Agreement provided to the applicant set out only the total remuneration figure of $32,500. Schedule B had not yet been completed nor had the Employment Services Agreement been executed because the applicant had not yet informed the respondent of the type of vehicle he had chosen and whether or not he wished to make any salary sacrifice in relation to superannuation contributions. A revised Employment Services Agreement including Schedule B was provided to the applicant in July 2000 after he had chosen a Holden Commodore 2000 Olympic Edition motor vehicle. The respondent "deemed that this vehicle would incur a salary sacrifice of $7,137.32" and the applicant agreed to make this salary sacrifice. 71 Jim Dimas stated that to his knowledge managers of Subway stores in New South Wales were paid between $27,000 and $35,000 depending on their experience and level of responsibility. The respondent had employed a director of operations at a base salary of $50,000 but these responsibilities were vastly greater to those of the applicant. 72 In cross-examination, Jim Dimas said that the applicant's salary sacrifice for the car was deducted from the gross salary of $32,500 - this occurred each month. Approximately $700 per month was deducted for the vehicle although he was not sure of the precise amount. The motor vehicle benefits deducted each month was not the precise figure of the lease payments but was about $700. Jim Dimas' attention was then directed to the payroll advice emailed to the applicant. He agreed that it contained no entries about deductions from salary for the car although it did deal with superannuation and PAYG withholding. He agreed that if the figures were added together they showed that for year to date a little over $31,000 was paid, not $32,500. Payslips produced to the Court were not given to Mr Costin by email but were an earlier version. Jim Dimas stated that the motor vehicle was above the base salary and was then deducted from that salary at about $700 per month. 73 Jim Dimas said that he did not keep copies of payslips but a copies were kept within the MYOB files. The payroll advice produced by the respondent during the hearing was not a copy of what had been emailed to Mr Costin but came from the respondent's MYOB system. In relation to the PAYG payment summary, those documents did not contain any amount in recognition of fringe benefits tax - Jim Dimas was unsure why that was so because he relied on the accountant to complete these documents. Jim Dimas held a degree of Bachelor of Commerce and had undertaken accounting courses. 74 In relation to the payroll advice supplied by email to the applicant, Jim Dimas agreed that the superannuation deduction against the monthly salary appeared to be a deduction of seven per cent. The payroll advice from the MYOB system also showed a seven per cent deduction for superannuation. The contract with the completed Schedule B specified superannuation at eight per cent whereas Mr Costin's copy had superannuation at nine per cent. Jim Dimas accepted that that percentage of eight per cent for superannuation was an error but had only been discovered the previous evening. There may have been other errors apart from the superannuation figures. 75 In Jim Dimas' view it was not correct that the evaluations completed by the applicant should reflect the time devoted to the evaluation but should rather reflect time actually spent in the store conducting the evaluations. It was not company policy for the evaluation to be completed outside the store. Jim Dimas agreed that there may be a need, in performing this work, to work a number of days in succession which was so in relation to a store opening. 76 In the view of the respondent, there was no role for the applicant to play in point of sale arrangements. Some little assistance might be given by the field consultant to a franchisee relating to the computer. If the consultant was in the store and could provide a little assistance that would be appropriate. If there was a problem with the Windows system, Jim Dimas expected the franchisee to ring the Help Desk because it was not part of the respondent's role to overcome difficulties or repair the system. He was unaware of the level of computer skills possessed by Mr Costin. Subway Systems supplied programmes to be installed by franchisees and sometimes supplied upgraded programmes. Mr Costin's role would be to refer the franchisee to the manual or he might have shown a franchisee how to perform the installation. Jim Dimas was unaware that the Help Desk from time to time contacted Mr Costin about providing computer assistance to franchisees. 77 In re-examination, Jim Dimas said that copies of the payslips had been kept in the respondent's computer. There had been an office break-in, however, and the computer had been stolen. 78 Nick Dimas was a director of the respondent. Approximately two weeks before the applicant started employment with the respondent in July 2000, there was a meeting with Mr Costin and Nick Dimas in the Liverpool office. During that meeting, he heard Jim Dimas say to the applicant that his total package would be $32,500. 79 On the same day, the three then attended a Subway store at Hoxton Park. While standing outside the store, Nick Dimas heard the applicant say that his car was a bomb. Jim Dimas said that he could either keep the car with an allowance or with salary sacrifice he could have a company car. The applicant had replied that he would take the company car, he would have a think about the type of car and would let Jim Dimas know. Jim Dimas had replied that, "Nick knows the owners of Suttons". Nick Dimas then spoke to the applicant and told him to have a look around and, if he wanted a Holden, he could take the applicant to Ryan Sutton who was a good mate. 80 On 3 July 2000, the applicant came to the respondent's office to begin employment. Nick Dimas heard his brother ask the applicant whether he was happy with the agreement and also that he needed to work out the motor vehicle component which could not be done until the applicant had settled on the type of car. The applicant replied, "Yes". 81 On around 11 or 12 July 2000, the applicant drove with Nick Dimas to Suttons Holden in William Street Sydney and met with Ryan Sutton. The applicant looked at a number of cars. Nick Dimas said to him that he could have whatever car he wanted, it was up to him because he would have to salary sacrifice. Mr Costin said that he had never had a new car before and he did not want to commit too much too soon. The paperwork for the lease was forwarded to Mr Nick Dimas who signed it. He denied delivering the motor vehicle to the applicant in Wollongong or anywhere else. It was the practice of the respondent to give registration papers for vehicles to employees to keep in their car. Nick Dimas could not recall how the registration papers were given to Mr Costin in 2001, but in 2002 he gave the applicant the registration papers for the vehicle. 82 In cross-examination, Nick Dimas accepted that the lease documents contained his signature and an acknowledgement that he had received the motor vehicle. 83 Nick Dimas did not ever pay wages and was only involved in the payment of expenses. He knew of the existence of payslips and that they showed deductions but he had nothing to do with the payslips and did not provide any payslips to the applicant. In relation to the amount deducted from the applicant's salary for the lease on the car, Nick Dimas could not recall whether the $741 monthly lease payments were deducted from the applicant's salary. He may have been involved in the negotiations of that sum but could not recall - his brother played a role in those negotiations. The money deducted in relation to the car, on his understanding, was close to the amount of the lease payments. Nick Dimas said that he had a novated lease by way of salary sacrifice - he could pay out the residual on the motor vehicle lease or roll it over. Employees of the respondent on this system could do whatever they liked because they had the car but he agreed that was not the applicant's situation. Mr Turski's position was also different because he was given the applicant's car when he left. Nick Dimas could not recall if Mr Turski owned the car or if there was a deal about the car because it had travelled a lot of kilometres. 84 Nick Dimas said he had a vivid memory that the applicant had agreed to salary sacrifice to obtain the car and that it was his choice of car that determined the amount of salary sacrifice. 85 Damien Turski said he had commenced employment with the respondent on or about 27 October 2001. He had met the applicant when managing a store in Campbelltown in 2000. When he commenced employment with the respondent he travelled with the applicant to obtain work experience. 86 During 2002, he recalled having a conversation with the applicant in which Mr Costin said he had been to a seminar about new computers and how he was impressed with the Toshiba. Sometime later, the applicant said he knew a person from Toshiba who had asked him to help in installing the point of sale machines as he did not have anyone who knew the Subway system. The applicant said he was going to apply for an ABN number. The applicant also told him that he was going to perform the installation of the point of sale equipment at EastGardens store and that he would be invoicing Toshiba and it would be paying the applicant. He said he had performed point of sale work at the Goulburn, Wagga Wagga and Coffs Harbour stores. 87 In cross-examination, Mr Turski said that, when he took up employment with the respondent, he used his own car and was given a car allowance. He was paid by cheque on a monthly basis. He was given other documents, for example payslips, in October 2001 but he did not receive a breakdown of the figures until sometime later. 88 In his role for the respondent, he carried out store evaluations and not all of his reports were always produced in the store. The times entered on his log represented what he did and were not necessarily a true account of when he arrived and when he left the store. He could work up to seven days straight including Saturday and Sunday and, when that occurred, he would take days off in lieu but did not report that happening. 89 He had performed store openings with Mr Costin. They had performed the opening of EastGardens store. Mr Costin had performed work prior to the opening. Mr Turski agreed that sometimes more than 70 hours were needed to open a store and that the consultant could leave the store to obtain materials for the opening. The logs he compiled reflected the time taken for the job and reflected actual time. 90 From time to time, Mr Turski received calls from the Help Desk requesting assistance for franchisees and would render assistance if it was in the realm of his employment. He would sometimes receive point of sale enquiries and would be told what was going on at the store but he did not ever go to the store to deal with the enquiries. Sometimes he would receive direct calls from a franchisee about point of sale, if he could help he would but he would not go out of his way to do so. He would not travel long distances to render assistance. 91 In re-examination, Mr Turski said that if he was not able to complete a report on the premises he would complete it nearby. He would finish the report and give it to the franchisee the same day. Sometimes that might occur on a different day, for instance, if there were problems with power for the printer. 92 Wayne Batts was employed by Subway Systems Australia Pty Ltd and in December 2001 helped establish a point of sale Help Desk within Australia. His duties as Help Desk assistant included providing point of sale Help Desk support to all franchisees, including field agents, regarding the use of Sub Shop 2000 computer software as part of the Subway System. 93 When he was contacted by a franchisee or field consultant, his usual practice was to provide technical support or assistance to the enquirer to resolve the software problem. He provided technical instructions to the enquirer based on what they had told him of the problem. To the best of his knowledge, it was for the franchisee to take the day-to-day practical responsibility for the operation and maintenance of Sub Shop including upgrading the computer software. 94 Mr Batts said that he sought to resolve the problems referred to him to assist the enquirer and did not direct an enquirer, including people working as consultants like Mr Costin, to resolve the problems. The enquirers were able to undertake any action they wished. He had spoken to Mr Costin several times in his role as point of sale Help Desk assistant. During those conversations, he had provided instructions to Mr Costin as to how particular Sub Shop problems might be resolved. However, he had never directed Mr Costin to travel to a particular store to resolve the problems. 95 In cross-examination, Mr Batts said that the Help Desk operated during normal business hours for Australia, New Zealand and Asia. The Subway System had a charge for calls and was an outsourced system. Mr Batts would try to assist franchisees depending on the problem. Sometimes field consultants could resolve the problem and he knew who could and who could not resolve issues. It was part of policy not to involve field assistants but, if a field assistant rang the Help Desk, he would deal with the query. If the problem could not be solved, he would telephone the franchisee to contact the computer dealer. 96 Mr Batts said he did speak to Mr Costin and others about problems if he thought they could fix them or assist. 97 David Nicholson was a franchisee of Subway stores at Miranda and Cronulla. He had met Mr Costin when Mr Costin carried out evaluations on those stores. He had asked Mr Costin to assist him with a point of sale matter when the computer would not transmit the store's sales electronically. Mr Costin spent about an hour in the shop working on the point of sale problem and Mr Nicholson paid him about $200. 98 Mr Nicholson said he had the Windows 96 programme and it needed to be upgraded. The Subway System did not accept Windows 96. He told Mr Costin that he needed to upgrade his system because he could not get it to work. Mr Costin asked him how much they were charging for the upgrade at Cronulla. Mr Nicholson told him the cost was $350 and Mr Costin said he would do it for $200. 99 In cross-examination, it was put to Mr Nicholson that Mr Costin did not ask for the $200 but Mr Nicholson rejected that proposition and said Mr Costin did ask for the money. He had asked Mr Costin if he could fix the system. DELIBERATION 100 It is appropriate to commence with a consideration of the circumstances in which the applicant was provided with a motor vehicle. From the evidence, it is clear that to perform the duties of the position of a field consultant, the applicant had to travel considerable distances in order to conduct evaluations of the stores operated under franchise by the respondent. On any view, this work could only be performed by using a motor vehicle: it was an essential work item. 101 Both parties came to Court with a materially different contract in relation to the provision of a motor vehicle. The contract in the applicant's hands specified a total remuneration of $32,500 and made no additional provision for superannuation or for a motor vehicle. The contract had a clause stating that, if a motor vehicle benefit was included in the total remuneration, the company would supply the motor vehicle and would be responsible for all running expenses including maintenance and some associated costs. That clause, on its face, appeared to be a standard clause and required some other provision to be made for it to be operative. In the contract held by the applicant no such provision was made. In the contract held by the respondent, there were three entries making up the total remuneration of $32,500: a base salary of $23,483.04, superannuation at eight per cent in the sum of $1,878.64, and a motor vehicle benefit value of $7,138.32. The respondent asserted that the applicant was given a "draft" contract but that it was not completed because he had not yet chosen a vehicle and it was unknown what would be the level of "salary sacrifice". The applicant's evidence was that the discussions with the Dimas brothers made it clear that he was being offered $32,500 plus a car to be provided to him at the expense of the respondent. No party was able to produce a contract signed by any party. 102 These circumstances leave the Court in some difficulty in determining what happened between the parties as they negotiated the remuneration package and in establishing exactly what arrangement was made in relation to the provision of a motor vehicle. Analysis of the evidence must commence with the acceptance that this position could only be performed by using a motor vehicle to travel the long distances between the various stores. There was something decidedly odd, therefore, about an arrangement whereby, from a modest total remuneration of $32,500, the applicant was to pay somewhere between $600-$700 per month for a car that was ultimately owned by the respondent in order to perform that work, although the respondent was paying the running costs. 103 On the totality of the evidence, I accept that what was held out on behalf of the respondent was that the applicant would be provided with a motor vehicle which was in addition to his total remuneration of $32,500. This was the applicant's first full-time employment following his work for the Canberra City outlet as a student over a number of years. He had some, admittedly imprecise, knowledge of the amounts earned by store managers, but acted in that role for a period of time. I accept that he raised with the respondent the low level of salary and was induced to enter the contract by the representation that he would be provided with a motor vehicle. On the respondent's evidence, he was offered a "company car" or "an allowance". There was no suggestion by the respondent that the "allowance" would have been deducted from his total remuneration of $32,500. Such allowance had to factor in not only the running costs (that would be paid in any event for a company-owned vehicle) but an amount for the use of the applicant's own vehicle. There did not seem to be any rationale as to why the applicant would be paying for the company provided vehicle and that the respondent would be paying above the total remuneration package by way of an allowance for the applicant to use his own car. Some assistance in resolving this issues is derived from the fact that Mr Turski was provided with the applicant's vehicle after he resigned and that the vehicle as well as the running costs were paid for by the respondent. That arrangement involved no salary sacrifice by Mr Turski. 104 There were a number of other matters which assist in shedding some light on the arrangement for the provision of a motor vehicle to the applicant. The contract so heavily relied upon by the respondent was a curious document. It provided for a base salary of $23,483.04 per annum. This figure was only explicable by the deductions of superannuation and motor vehicle benefit from the total remuneration of $32,500. It valued the so-called "salary sacrifice" at near 22 per cent of the total remuneration, then provided for superannuation at eight per cent. During the course of evidence, it was accepted by Jim Dimas that eight per cent for superannuation was a mistake and there was no challenge to the fact that the applicant had, in fact, been offered nine per cent superannuation as part of his total remuneration package: that nine per cent figure appeared in the applicant's version of the contract. It was accepted that there were other, perhaps minor, differences between the two contracts, but they could not be explained. There was no evidence of the respondent having offered eight per cent superannuation in a standard form contract prior to engaging the applicant and no other rational basis was put forward for the inclusion of eight per cent in that document. However, there was another point. In November 2002, the applicant had asked the respondent to supply him with a number of documents, including "all schedules and attachments to my current workplace agreement including details of salary structure, tax payments and deductions". A little over a week later, Jim Dimas replied in these terms: I don't have copies of any schedules or attachments to your workplace agreement, other than what has been provided to you in the past. As you know, we did not attach a new schedule to the agreement each time we increased your salary. 105 On one approach, Mr Dimas was saying to the applicant that he had no attachments yet, in the preparation of the case, was able to produce a schedule with a breakdown of salary items including $7,138.32 for motor vehicle benefit value. On another approach, Mr Dimas had that document with the incorrect nomination of eight per cent for superannuation, but did not pass it on to the applicant on the assumed basis that the applicant already had it, although the applicant was asking for all schedules to his current agreement. It was likely, if Mr Dimas had forwarded a document to the applicant nominating superannuation at eight per cent, that the applicant would not only have corrected that figure by insisting on the nine per cent agreed upon (a figure not disputed between the parties) but would also have been in a position to challenge the figure of $7,138.32 attributed to the motor vehicle benefit value. The applicant's submission that the first mentioned meaning was the proper understanding of Jim Dimas' reply was not seriously or effectively challenged by the respondent. 106 There were other difficulties with the records said to be maintained by the respondent. The group certificate issued for taxation purposes made no reference to fringe benefit tax in relation to the motor vehicle. Further, the payroll advice document, which appeared as a month-by-month running record, although recording taxation deductions and superannuation deductions, made no reference at all to any deduction for the motor vehicle. On the respondent's own evidence, there was some $700 per month, at least, being deducted from the applicant's salary to go towards the lease payments for the motor vehicle. The lease payments were just over $741 per month yet Jim Dimas thought that precise figure was not taken from the applicant's salary but something over $700 per month. The respondent's version of the contract attributed $7,138.32 to the motor vehicle benefit - this figures worked out to be just under $595 per month: no explanation was ever provided during the proceedings as to why more than that amount had been deducted from the applicant's salary. 107 Clause 5.3 of the contract provided: If a motor vehicle benefit is included in the total remuneration, the company will supply the motor vehicle and will be responsible for all running expenses including maintenance and associated costs. On its face, this clause did not appear to operate as a salary sacrifice clause but appeared to contemplate a vehicle supplied by the respondent, fully maintained by the respondent but perhaps with private use permitted which might be calculated as the motor vehicle benefit. A salary sacrifice provision might be expected to permit part of the total remuneration to be allocated for the purpose of permitting the employee to select a vehicle: it is usually an arrangement by which the employee agrees to forego part of future salary in return for the employer providing benefits of similar value. 108 The evidence as to how the level of salary sacrifice was established was also unsatisfactory. Jim Dimas said that he told the applicant directly that, if a "company car" was to be provided, then it would have to be paid for by way of salary sacrifice by the applicant: thus, the concept of a company car became fused with the notion of salary sacrifice. The applicant denied that any such conversation took place. There was no evidence of any discussion between the applicant and the respondent as to what the level of salary sacrifice would be: it might be expected that such discussion would be of vital interest to a young man starting out in his first full-time employment and where his modest total salary was to be reduced to provide a car for him to perform work for his new employer. Jim Dimas said no more than "we deemed" the salary sacrifice to be the very precise figure of $7,138.32. On his evidence, at the time that salary sacrifice was "deemed" to be the figure for the contract, it bore no relationship to the actual lease repayments being made by the respondent, nor was there any suggestion, on the evidence, that it related to any other figure. Yet, its precision is surprising. Jim Dimas said that, after deeming that figure, the applicant was informed of the figure, apparently without negotiation, and he simply accepted it. Mr Nick Dimas thought that there were negotiations but provided no details. In light of all the evidence on this subject, I am unable to accept the respondent's evidence on this matter. 109 Having regard to the state of the evidence, I have ultimately come to the conclusion that the applicant was, indeed, offered a company car by the respondent (one of the few matters that did not seem to be in contest), but such representation being made in the context that the car would be provided and maintained by the respondent over and above the $32,500 remuneration. It was likely that offer was made to induce the applicant, who already had some knowledge of the Subway System, to take up employment in this new position and, when he expressed concerns about the low salary, was offered the fully maintained and provided car as a further inducement. The applicant was unable to ascertain precisely what was being taken from his salary by way of deduction because he was not being provided with salary advice slips (a matter with which I will deal separately). When the applicant discovered late in 2002 that he was not the owner of the car and that the respondent maintained ownership of the car yet he was paying the lease, his dissatisfaction reached a point where he was prepared to resign from employment with the respondent. 110 On the basis of these findings, I conclude that the applicant was induced to enter the contract by the representation of the respondent that he would be provided with a fully maintained vehicle at the respondent's expense over and above a salary of $32,500. That representation was not honoured by the respondent and, by its conduct in deducting over $700 per month from the applicant's salary, the contract became unfair. On the respondent's case, the applicant had agreed to the so-called "salary sacrifice" and had accepted its "deemed" figure of $7,138.32 to be deducted from the total remuneration of $32,500. Had I found in favour of the respondent on this approach, I would have, nevertheless, found the contract unfair having regard to the age and circumstances of the applicant and the parties unequal bargaining positions, and I would have varied the contract to require the respondent to pay the lease payments as well as the running costs of the vehicle. In my view, if this had been the contract agreed upon, then the respondent had taken advantage of the youth and inexperience of the applicant and had enticed him into an arrangement whereby each month he was paying for the lease of a motor vehicle required to perform the respondent's work and to do so in circumstances where, although paying the lease payments, he was not the owner of that vehicle and, under the terms of the contract was given no equity in it. In the circumstances of this case, such a contract was so unfair that it would be just and proper to vary the arrangement between the parties to alleviate the applicant's burden in relation to lease payments. 111 The next issue of some difficulty is what money order would be just in the circumstances of the case to be made in favour of the applicant. The Amended Summons for Relief provided a somewhat convoluted formula to calculate an amount of $15,210.67 as being payable to the applicant if he succeeded on the motor vehicle aspect of his claim. In addresses, it was accepted that there was a flaw in that calculation and, properly applied, it resulted in a figure slightly over $14,500. The other approach urged by the applicant was based on the fact that the lease payments were $741.84 per month and paid over 28 and a half months by the applicant resulted in a figure of $21,141.58. 112 I have already indicated that, whenever it was supplied, the salary advice relied on by the respondent contained no amount of deduction for the motor vehicle. The figures before the Court also suggested that there might have been an underpayment from year to year of the applicant's salary and there were difficulties with the amount of superannuation deducted, a matter conceded by the respondent. That combination of factors leaves the Court without any reliable documentation against which to calculate what was actually deducted from the applicant's pay each month for the motor vehicle. Jim Dimas's evidence was that there was something around $700 deducted per month and that it might not have been as much as the $741 lease payment in that it was "around $700". In the circumstances, it seems to me that it would be fair as between the parties to use the figure of $700 per month and, based on 28-1/2 months' deductions, that would result in a payment to the applicant of $19,950. 113 I then turn to the applicant's claim for the payment of reasonable overtime, considering the hours he worked, including the travel involved in performing evaluations and store openings over a widespread territory. The Amended Summons for Relief calculated the overtime owing to the applicant in the sum of $43,907.95. That claim was made by reference to five specified periods with the first period claiming average overtime of 21 hours per week over 26 weeks, and the remaining four periods claiming a little more than 30 hours average overtime per week for a total of 73 weeks. Earlier in the Amended Summons, the applicant had estimated average working hours in three periods, the first period averaging 61 per week, and the next two periods averaging about 70.5 per week. The overtime calculations were made on the basis of ordinary hours of 40 per week, although the contract did not lay down any hours or even a span of hours. Under Clause 4.3 of the contract, the applicant was to work such hours and days as were reasonably required in the discharge of his functions under the agreement and was to undertake such travel as was reasonably required in the proper discharge of his duties. 114 There was no requirement, generally, for the applicant to record his hours of work, nor was he required to record his travelling time. The applicant was required to complete a log of time spent on evaluations of the respondent's stores and also in relation to the opening of new stores. At the time those entries were made, there appeared to be no reason why the applicant would exaggerate those hours because there was no payment or other remuneration which became payable because of the hours so recorded. The difficulty with the log became evident during the evidence, when the applicant was closely cross-examined on a comparison of the entries in his log and his telephone records which showed that he was, on a number of occasions, in a completely different area. The applicant's response was that the log did not necessarily represent the hours of arriving and leaving but did represent the overall time spent on that particular outlet. The applicant's explanation was that, for a variety of reasons, not all work could always be performed at the store and, while some of it could be performed nearby, there were times when the work was performed over a period - nevertheless, the total hours spent on that store and that task were accurate. The applicant further stated that, while there were such problems with the log, nevertheless, over 80 per cent of the entries in the logs were an accurate representation and were handed to the franchisee on the day they were prepared. While the applicant was closely cross-examined on a number of differences between the logs and his telephone records, the respondent did not directly challenge this last assertion. 115 A further difficulty with the applicant's case in relation to the payment of reasonable overtime is that, during the course of the evidence, it became clear that the applicant, as he was entitled to do, organised his time with, broadly, the first two weeks of the month performing a variety of other duties for which there was no hours record, while the last two weeks of the month were spent in performing store evaluations which were logged. In addition, there was evidence that the applicant was able to arrange annual leave to suit himself (although he said he took little) and he was also able, after spending long hours travelling to perform evaluations, to take some time in lieu. These matters obtained some support from the evidence of Mr Turski. The evidence was therefore left in a state where there was a great deal of recorded activity in two weeks of the month and no record kept of the first two weeks of the month and no real indication given as to the time spent in the first two weeks of the month in performing duties and to what extent time was taken in lieu by the applicant. A further difficulty was that the calculations and approach of the applicant seemed to pay no regard to the fact that after he commenced employment, in about late October 2001, Mr Turski was appointed and the area divided between them. However, there was a continuation of the same type of overtime hours claimed by the applicant during the period Mr Turski was employed even though the applicant was now working a reduced area. 116 A claim based on the working of unreasonable hours and seeking payment of overtime, in my view, requires some precision. From the commencement of these proceedings, the applicant had supported his case by an estimate of total hours and had used the log to support that assessment. The applicant's assessment of travelling time appeared to be on stronger ground ,having been calculated by reference to a website indicating average travelling time between the destinations that he was required to visit and which times appeared to fit the applicant's own experience. Ultimately, I am troubled by the state of the evidence as to hours worked in excess of 40 per week because of the absence of evidence as to what actual hours were worked in the first two weeks of each month. The lack of overall precision of the evidence operated against the applicant's claim, although I accept that in performing his duties he was not only required to travel long distances but also visited stores in the evening hours in order to perform proper assessments of the outlets. I have no doubt that he was involved in performing extended periods of work or work and travelling - for example, his visits to Wagga started in Canberra at 6.00 am and finished in Canberra at 11.00 pm that day. Indeed, Damien Turski said that he could work seven days without a break to perform the same functions. I am unable, however, to justify a finding that there was such overtime worked as to justify payment of more than one year's salary to the applicant who performed this task for 28 months for the respondent. 117 During the course of addresses, I raised with both counsel the unsatisfactory state of the evidence in relation to this aspect of the applicant's claim in light of the need for some precision when basing a claim on a working of unreasonable hours and claiming overtime for those hours. During that discussion, I raised with the parties the possibility of a different approach, namely an allowance in recognition of the extensive travel undertaken by the applicant and the spread of hours over which the work had to be performed including weekends, especially when there was a store opening. It is sufficient to state that the applicant, nevertheless, pursued the claim as set out in the Amended Summons and the respondent rejected the whole basis of such a claim. I have considered the increases granted to the applicant during the term of his employment, noting that the first increase of $2,500 per annum was made in relation to his performance and that the increase from $35,000 to $40,000 was primarily made in recognition of his move to Sydney to more efficiently perform his evaluation tasks and in recognition of the higher rental and living costs in Sydney compared to Canberra. Having regard to the spread of hours, the need to perform this work on any day of the week, including weekends where necessary and the large travel component when performing evaluations and to a lesser extent store openings, in my view, fairness would require the contract be varied to insert an allowance of $1,500 per annum in recognition of these elements. The applicant was employed by the respondent for 28 months and so the third year of the allowance should be paid on a pro rata basis. 118 In relation to superannuation, there does not seem to be any real doubt that the parties intended that the applicant commence employment on a total remuneration of $32,500 which included an amount of superannuation calculated at nine per cent: on the approach I have adopted the remaining remuneration would represent 91 per cent of $32,500. If there was any continuing contest about that matter, on the evidence I would hold that was the effect of the contract that was entered into in July 2000. Thereafter, superannuation would be calculated by reference to a total remuneration of $35,000 from February 2001 and by reference to nine per cent on a total remuneration of $40,000 from August 2001. The respondent has accepted that some parts of the superannuation element of the applicant's remuneration have not been properly calculated and has offered to pay a sum based upon the base salary minus the motor vehicle benefit of $7,138.32. I cannot accept the respondent's approach to the terms of the contract and, therefore, the superannuation component of nine per cent must be calculated on a salary of $32,500, then $35,000 and finally $40,000 over the period that those amounts were current. Having made that determination, the parties may be in a position to resolve what payments are due to the applicant also bearing in mind that there is evidence that he was not paid his full rate of salary and only seven percent superannuation from the beginning of the contract. If there continues to be a difficulty between the parties in relation to this matter, I would be prepared to make a declaration as to the superannuation component of the applicant's salary to reflect the findings I have made in relation to that matter. 119 Despite the fairly modest nature of the relief sought in this case, the evidence and argument occupied a full five days of hearing before the Court. The main players on each side were closely cross-examined and a considerable amount of documentary material was tendered in evidence. Both sides at various points challenged the credit of the main witnesses and suggestions were frequently made that documents had been deliberately falsified to support the case of one of the parties. During addresses, I observed that, while there were a number of curious documents or aspects in the case of both parties, there was an insufficient basis to make a finding of fraudulent entries in documents or the fraudulent manufacturing of a document. During the conduct of the case, I closely observed the main protagonists during their evidence in chief and in cross-examination. I am satisfied that the applicant was straightforward and direct in giving his evidence and made immediate concessions when confronted with an inconsistency with his own evidence. There were aspects of the Amended Summons and his Supporting Affidavit which suggested exaggeration as to directions given to him rather than requests, and the estimates of time taken, for example, travelling time in one period on re-assessment was said to be an average of 15 hours per week, rather than 20 hours per week. These matters may owe their existence to the way in which the claim was framed - in any event, the applicant made appropriate corrections when these matters were raised. 120 There was a concentrated attack on the credit of the applicant in relation to his separate work of installing point of sale equipment and receiving money from franchisees for that work. I accept Mr Nicholson's evidence that the applicant asked for payment in circumstances where Mr Nicholson raised a problem with him and sought his assistance. I reject the applicant's evidence that Mr Nicholson pressed that payment upon him and that the applicant was initially reluctant take any money for the work. During his employment, the applicant seems to have earned between $3,000 and $4,000 for this work mainly for franchisees associated with the respondent and without disclosing that work to the respondent. While I reject this aspect of the applicant's evidence, it does not lead to a general questioning of his evidence in relation to other matters. 121 It was said on behalf of the respondent that this material was not disclosed in the applicant's original affidavits but, in the main, only came out as a result of investigations carried out by the respondent and answers provided to Interrogatories. That was not a completely accurate statement: Jim Dimas gave evidence that he had been informed that the applicant was performing work for a fee in relation to point of sale equipment for franchisees and directed him to cease that activity. The applicant accepted that conversation had taken place but placed that conversation in the period when he had given notice towards the end of his employment. That evidence was not called into question. There is no evidence that, once having the matter raised with him, the applicant disobeyed the direction given by Jim Dimas. That evidence serves to blunt the respondent's attack that the performance of this work was contrary to Clause 10 of the contract and, if it had been disclosed to the respondent, the applicant would have been dismissed. On the respondent's own evidence, it became aware of that activity, raised it with the applicant, gave him a direction which he accepted and did not dismiss him. Whatever strength there may have been in this claim by the respondent, in any event, it is not supported by the evidence. 122 The respondent's case also strongly challenged the idea that it was any part of the Mr Costin's role to assist franchisees when problems arose with point of sale programmes. Nevertheless, Wayne Batts' somewhat muted evidence was that he would call Mr Costin with problems in the hope that he would assist the franchisee but was careful not to say that he gave Mr Costin a direction to perform that work. Mr Turski had received similar calls and apparently responded to them although his evidence was given with much apparent caution as to the circumstances in which he might respond. Whatever point was being made by the respondent in this aspect of the case, having regard to the width of the duties required of Mr Costin with the central role being to provide "ongoing support and assistance" to franchisees, it seems perfectly proper that Mr Costin would actually resolve a point of sale problem if he had the knowledge and expertise to do so. It could hardly be expected that he would ignore franchisees' requests or a request from the Help Desk if he had a capacity to support and assist the franchisee. I do not believe that the respondent would have taken kindly to Mr Costin leaving franchisees to their own devices in such circumstances and a failure to act would have just as likely led to another criticism of his performance. This matter is put in some perspective by Jim Dimas who somewhat reluctantly finally agreed in cross-examination that Mr Costin could provide a little help in some circumstances and that would be acceptable. The question remains of what Mr Costin was to do when he was contacted by the Help Desk? Certainly, he could not ignore the problem. In addition, it was work that he was well equipped to perform and he seems to have taken the opportunity to do so with some enthusiasm. Apart from giving some insight into what duties he performed outside store evaluations and openings, I am unable to accept the respondent's criticism of Mr Costin for performing this work. 123 My overall impression of the applicant was that he was a young man engaged in his first full-time employment, not wishing to rock the boat by raising his growing concerns with the Dimas brothers, both of whom who were older men of business experience. While there were aspects of the applicant's evidence that were corrected through cross-examination, in the main, I believe he gave his evidence directly, honestly and with a quiet calmness despite having to undergo a close and robust cross-examination for over one and a half days. 124 The main evidence for the respondent was given by Jim Dimas. While there are aspects of that evidence and the evidence of his brother that I have not been able to accept, I am not able to form the view that their evidence was given dishonestly or with the intention of misleading the Court. What was abundantly clear from the evidence is that the respondent's records system was less than efficient. The respondent produced a version of the contract with the applicant which, on any basis, could not have been the document that the applicant signed. The respondent also produced two versions of payslips which were said to have been regularly provided to the applicant (which he denied) and those versions contained different amounts for the same cheque number and date. As earlier indicated, those pay advices make no reference for the deductions the respondent admitted it made for the motor vehicle component of the total remuneration package. It was not until re-examination that the respondent gave the evidence that all of the payroll advice was on a computer that had been stolen some time ago. 125 The regular provision of accurate payroll advices was a running sore throughout the case with almost a daily call by counsel for the applicant for the original pay advices that the respondents said were provided on a "regular" basis to the applicant. There was no explanation why one set of payslips contained different figures to the payslips emailed to the applicant. The payslips were meant to be part of an MYOB account programme kept by the respondent. There was also no explanation proffered by the respondent as to why the superannuation deducted from the applicant's pay in the first year of service was not invested in a superannuation scheme and why it was only after enquiries were made by the applicant that the respondent made contributions to a superannuation fund. The applicant lost the benefit of the investment for that year and the respondent does not appear to have turned its mind to an appropriate level of compensation for its omission. The evidence also showed that for several periods during the employment only seven per cent was deducted for superannuation. At the very least, these matters and others raised during the course of the case, indicate a poor level of management and document control within the respondent during the employment of the applicant. 126 The "deeming" of a salary sacrifice figure in a very precise amount without any basis established for that amount was indicative of an unbusinesslike approach. It may well have been that the respondent had little real regard to the arrangements made with the applicant when he was engaged and with an absence of documents clearly setting out the foundation of those arrangements, the respondent was left to its expectations in hindsight when faced with these proceedings rather than with any real recollection of what had occurred. Whatever be the reasons for the state of the applicant's business records and the basis upon which they gave evidence about the terms of the contract, I am unable to make a finding that Jim Dimas and Nick Dimas acted dishonestly or had fraudulently brought into existence documents for the purposes of their defence of the current proceedings. 127 There was some evidence of the applicant suffering illness during 2001 and taking a break to recover. While I accept that Mr Costin consulted a cardiologist there was no acceptable evidence linking any illness suffered by the applicant with excessive working hours. The concern of Mr Costin's mother was understandable but cogent evidence from an independent medical witness was not forthcoming. 128 There are two further matters raised by the respondent that should be dealt with briefly. The respondent submitted that, by completing more than 28 months' employment without complaint, the applicant was estopped by his conduct from raising the present issues. In terms, the respondent did not address in detail on the application of the principle of estoppel by conduct in the present case but, in any event, the submission ignored the applicant's evidence, which I accept, that he was not regularly provided with pay advices and was largely unaware of what deductions were being made from his salary. Secondly, it was said that the applicant's case attacked the original contract when, in fact, the case extended to the new contracts entered into in February and August 2001. It was submitted that these new contracts came about because the existing contract was terminated and a new contract entered into reflecting the increased rate of pay. There is absolutely no evidence to support an intention by any of the parties to enter into an entirely new contract, and the salary increases are just as likely to have been made by way of variation to the original contract or to have simply formed part of an arrangement sitting with the original contract. The submission, however, deserved no greater consideration in light of the way in which the Amended Summons was drafted: on its face that document makes it clear that it was the contract (therefore including any arrangement) that existed during the entirety of the employment relationship between the applicant and the respondent that was the subject of the proceedings. There is no substance in this point. 129 The applicant is directed to bring in Short Minutes of Order that reflect the determinations reached in this judgment. Rather than voiding the contract, I propose to vary its terms as indicated. The matter will be listed on Monday, 3 July 2006 at 9.45 am for the making of formal orders and to deal with any matters arising from those orders including the question of costs. 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.