Industrial Relations Commission of New South Wales CITATION: Pritchard v Trident Global Pty Limited [2006] NSWIRComm 1124 APPLICANT Jason Patrick Pritchard PARTIES: RESPONDENT Trident Global Pty Limited FILE NUMBER(S): 6269 of 2005 CORAM: Tabbaa C CATCHWORDS: unfair dismissal - defective affidavits - extension of probationary period - concurrent employment contracts - award coverage - annual remuneration exceeding statutory limit LEGISLATION CITED: Industrial Relations Act 1996 Day v Perisher Blue Pty Ltd [No.2] (2005) NSWCA 125 Sander v Snell (1998) 196 CLR 329 Creedon v Cardon Limited t/as Footrest Shoes [1999] NSWIRComm 269 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 CASES CITED: G G Maxwell v Acacia Resources (unreported) Ross VP, Drake DP and Lawson C, 31 October 1997, Print P6396) National Union of Workers (NSW Branch) v Modern Roof Restorations (NSW) Pty Ltd [19990 NSWIRComm 31 Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSM v Gartrell White (No.2) 1990 35 IR 60 Byrne & Frew v Australian Airlines [1995] HCA 24 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 HEARING DATES: 28/03/06, 29/03/06 DATE OF JUDGMENT: 09/18/2006 APPLICANT Mr D Shoebridge of counsel Solicitor Ms G Ramensky LEGAL REPRESENTATIVES: Ramensy Lawyers RESPONDENT Ms R Beach of counsel Solicitor Rosey Batt & Associates DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: TABBAA C 18 September 2006 Matter No IRC 6269 of 2005 Jason Patrick Pritchard and Trident Global Pty Limited Application by Jason Patrick Pritchard re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1124 1 Mr Jason Patrick Pritchard (the Applicant) filed an application on 01 December 2005 pursuant to the provisions of Section 84 of the Industrial Relations Act 1996 seeking relief for his alleged unfair dismissal by Trident Global Pty Ltd (the Respondent). 2 The matter was listed for conciliation and directions hearing before Connor C. on 16 January and 01 February 2005. However, those conciliation attempts failed to resolve the claim. Standard directions were issued and the matter was re-allocated for hearing. 3 In the interim, the matter was the subject of proceedings before his honour, Staff J. on 08 March 2006 at which time his honour refused an application by the Respondent to adjourn the scheduled hearing of the matter on 28 and 29 March 2006. 4 The hearing was conducted over both days at the conclusion of which further directions were issued as to the filing of written submissions. 5 Mr D Shoebridge, of counsel, with Ms G Ramenski, solicitor, entered an appearance on behalf of the Applicant and called evidence from: Mr Jason Pritchard Applicant 6 Ms R Beach, of Counsel, entered an appearance on behalf of Respondent and called evidence from: Mr Carman Peter Rossi Managing Director Mr Stephen John Hayes Regional Sales Manager Mrs Anna Jane Fisher Finance & Administration Manager 7 Tendered in evidence was a statement from Mr Tim Paterson, Senior Consultant with the recruitment firm, Bladen Taylor & Associates. Mr Paterson not was required for cross-examination. 8 As Mrs Fisher did not marry until after the dismissal and, at all relevant times was known by her maiden name, she will for the sake of convenience, be referred to as Ms Whiteread. THRESHOLD ISSUES 9 Three preliminary matters were raised in the proceedings as threshold issues - two on behalf of the Respondent and one on behalf of the Applicant, none of which had been raised by the parties at any time prior to the commencement of the arbitration proceedings. 10 Bearing in mind the nature of the threshold issues raised on behalf of the Respondent, the parties were advised that the hearing would proceed and a further date(s) would be made available should the Applicant require more time to present evidence in relation to those matters. Additional hearing time did not prove necessary. 11 The matters addressed in the proceedings have been dealt with in the following order: 1. Defective Affidavits. 2. Was the applicant a probationary employee at the time and if so, was his probation determined in advance of his employment? 3. Was the applicant an Award employee? 4. If the applicant was not an Award employee, were his earnings such that he was excluded by operation of the regulations? 5. The substantive merits of the case; and 6. What, if any, remedy should be granted. Defective Affidavits The Issue 12 A threshold issue was raised by the Applicant which had not been identified in the Applicant's reply and had not been raised with the Respondent or its representatives prior to the commencement of the arbitration proceedings. 13 It was brought to the notice of the Commission that on numerous occasions throughout the substantive affidavits of Steven John Hayes and Anna Jane Whiteread, both witnesses confirmed that they had read the affidavit of Carmen Rossi and adopted its contents in certain respects, and in particular the contentious factual issues arising from the alteration to the contractual arrangements. Submissions 14 It was submitted by the Applicant that the manner in which the Respondent's Solicitors had gathered its evidence was improper. 15 Mr Hayes, in cross-examination, recalled that the Respondent's Solicitor, Maggie Yarrak, had referred him to sections of the affidavit of Mr Rossi inquiring as to whether those sections were, in his view, correct bearing in mind they were a response to Mr Pritchard's affidavit. 16 Ms Whiteread, in cross-examination, also admitted that the Respondent's Solicitor had given her the affidavit of Mr Rossi to read on the day she swore her own affidavit (23 March 2006) and that it had refreshed her memory about a number of the events relating to the Applicant. 17 That conduct, whether consciously or unconsciously, was undertaken for the purpose of ensuring that its witnesses spoke with one voice and had a consistent version of events in relation to some highly contentious circumstances and events. It was pointed out that the Commission would experience clear difficulty in untangling a morass of coached witnesses. For that reason, objection was raised to the reading of both those affidavits. 18 The Applicant relied on the recent decision of the Court of Appeal in the matter of Day v. Perisher Blue Pty Ltd [No. 2] [2005] NSWCA 125 (20 April 2005) in which an excerpt from the judgment of Sheller JA is quoted in paragraphs 5 and 6. 19 In Day, it was held that once a witness's recollection of events is contaminated in such a way, an arbiter of fact would find it impossible to separate what is a genuine recollection from a recollection that has arisen through the improper settling of the evidentiary material by the client's solicitors. It was argued by the Applicant that the problem cannot be cured by simply calling Mr Hayes and Ms Whiteread and having them depose to their own version. 20 It was concluded that, as the Commission is bound to act in accordance with equity and good conscience and in a manner that it considers to be just, it had no option but to disallow the reading of the affidavits from those clearly impugned witnesses. 21 It was pointed out by the Respondent that the Applicant had possession of those affidavits since 18 March (Hayes) and 23 March (Fisher) and had ample opportunity to raise those objections with the Respondent's Solicitors beforehand but chose not to do so. It was argued that the purpose of confirming and adopting the evidence of the main witness was for easy reference and not for the purpose of "putting one voice". 22 It was further argued by the Respondent that the affidavits had to be prepared in a hurry. The Commission was reminded that the Respondent had sought, and been declined, an adjournment of the proceedings. 23 In addition, the Applicant, it was submitted, had filed an extensive affidavit in response to those affidavits and had, in fact, admitted some of the paragraphs objected to by his Counsel. It would, therefore, be very prejudicial to the Respondent to have the objection upheld at this stage of the proceedings. Consideration 24 In arriving at its determination, the Commission took into account the following matters. 25 Firstly, standard directions were issued to the parties on 01 February 2006. The standard directions included the following notice to the parties: "You need to be aware that it is highly unlikely that a direction will be varied because you have not taken immediate action to take the steps outlined in this document. YOU MUST COMMENCE PREPARING YOUR CASE NOW. " 26 The Applicant was to file and serve his affidavits by 23 February 2006. Although the Respondent received a copy of that affidavit, minus the supporting documentation, by facsimile on 24 March, it did not receive the complete affidavit until it was filed and served on 27 February 2006. 27 An application by the Respondent to adjourn the hearing dates was rejected by his honour, Staff J, on 08 March 2006. However, in view of Ms Whiteread's unavailability and the delay experienced by the Respondent in receiving the Applicant's affidavits, His Honour varied the standard directions to grant the Respondent leave to file and serve all affidavits on or before 23 March 2006 save and except for that of Ms Whiteread. Her affidavit was required to be filed and served by 27 March 2006. The date for the Applicant's general response (23 March) was not varied, however, leave was granted for the response to Ms Whiteread's affidavit to be filed and served by 27 March 2006. 28 The Respondent subsequently filed and served the affidavits in question on 18 and 23 March 2006 respectively. 29 Whilst the above does not in any way excuse the failure to comply with the standard directions, it does serve to confirm the explanation that the said affidavits were prepared in a hurry. 30 The standard directions require the parties to reply to the documents that have been served on them. Further, the directions require that reasonable notice be given to the other party if a witness is required for cross-examination otherwise the proceedings shall be conducted on the written statements and other documentation filed and served by the parties. 31 Save for Mr Paterson, all of the Respondent's witnesses were required for cross-examination. Notice ought to have been given that the Applicant wished to have the matter of defective affidavits determined as a preliminary issue prior to the hearing on the merits of the claim or, at the very least, put the Respondent and the Commission on notice that it intended to deal with the motion to disallow the reading of those affidavits as a preliminary issue at the commencement of the two-day hearing. Both Mr Hayes and Ms Whiteread had travelled to Sydney from South Australia because they were required for cross-examination. 32 Secondly, the said affidavits contained other matters which only they would have been able to provide direct evidence about. To strike out the whole of their affidavits would have left wide gaps in the evidence which would have been unhelpful to both parties. Mr Rossi would only have been able to fill those gaps by the provision of hearsay evidence. In conclusion, acceding to the Applicant's request would have deprived the Commission of evidence vital to the just determination of the issues in question. 33 It is noted, having allowed the affidavits in the amended form, that some of that evidence, when tested in cross-examination, was of benefit to the Applicant. 34 Having said that, the Commission notes and endorses the sentiments expressed in the Judgment of the Court of Appeal in Day which cites with approval the following excerpt from the judgement of Sheller JA: 30 It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant's witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper. The process adopted was more concerned with ensuring that all the witnesses gave evidence which would best serve their employer's case. This realisation makes particularly sinister the precept in the Witness Protocols for Court Cases and Arbitration Hearings, "Not about facts about credibility". 35 The manner in which the affidavits were obtained from Mr Hayes and Ms Whiteread was indeed improper. In my view, however, the circumstances relating to each case need to be examined in the light of the judgment in Day and an appropriate ruling made to suit the circumstances pertaining at that time in order to ensure that a framework exists for a fair and just hearing of the issues in dispute. Decision as to Defective Affidavits 36 For the above reasons, a determination was made on 28 March 2006 that only those parts of the said affidavits that dealt with direct evidence on the issues raised in the proceedings would be read. All parts of the said affidavits that made reference to the involvement of Mr Rossi and were dealt with in the affidavit of Mr Rossi would be struck out. Was the applicant a probationary employee at the time of termination and if so, was his probation determined in advance of his employment? The Issue 37 The letter setting out the agreed contractual terms upon which an offer of employment was made stated that employment would be full-time, subject to the successful completion of a 3-month probationary period. 38 It was not disputed that the period between 04 July and 11 July was a period during which the engagement was classified as a sub-contract arrangement, pending the resolution of the matter of a business visa for the Applicant. 39 The Applicant formally commenced employment on 12 July 2005 as NSW/New Zealand Business Development Manager. Technically, the probationary period was to expire on 04 October 2005. 40 At a meeting held on Thursday, 29 September 2005, the Applicant was advised that his performance had been unsatisfactory and that he was being terminated. 41 It was subsequently agreed, as a result of discussions held during that meeting and following industrial relations advice received by the Respondent, that the Applicant would be given another opportunity at employment with the Respondent. The Applicant received a termination letter dated 29 September 2005 and a re-engagement offer dated the same day. The parties were in disagreement as to when those letters were provided to the Applicant. 42 Nevertheless, the new contract contained an offer to act in the same position but restricted to New South Wales only. It resulted in a consequential reduction in his salary to $80,000 per annum plus commissions, and a three-month probationary period commencing from Monday, 03 October 2005. The Applicant was dismissed on 16 November 2005 during the currency of that second probationary period. 43 The Respondent contended that the Applicant was exempted from seeking relief pursuant to section 83 of the Act as he was serving a probationary or qualifying period when he was dismissed from employment. 44 The Applicant contended that he had already completed a three month probationary period and the employment had continued beyond that term. Submissions 45 The primary argument of the Applicant was that upon completion of a three month probationary period, the employment relationship had continued without a break until his termination on 16 November 2005. Thus he had been subjected to an extended probationary period which had not been determined in advance and therefore cannot be regarded as a relevant exemption to jurisdiction for the purposes of Section 83(2)(b) and Regulation 6(1)(c). 46 In the alternative, it was argued that the extended probation period was a sham as it was designed to avoid the operations of the unfair dismissal system and was therefore void. 47 It was contended that the factual evidence before the Commission supported a number of findings. Firstly, the date on which the Applicant's "official" employment commenced; secondly, that the initial contract of employment provided only one means for its termination during the probationary period and that is by the provision of one week's notice by either party. No provision had existed for payment of monies or forfeiture of pay in lieu of notice; and, thirdly, that the Respondent intended to maintain an employment relationship with the Applicant. 48 In relation to that third contention, the Applicant relied on: v the evidence of Ms Whiteread who, in cross-examination, admitted that she and Messrs Rossi and Hayes held discussions prior to the termination meeting on 29 September to discuss the future employment of Mr Pritchard. Those discussions included the option of continuing his employment, albeit with a reduced salary and an extension of the probationary period; v the stated intention in the concluding paragraph of the termination letter of 29 September which read: "We hope that there may be an opportunity for us to continue our relationship with varied expectations and understandings ." [emphasis added] v the recollection of the Applicant, which was confirmed by Ms Whiteread, that both the termination letter and the re-engagement offer were handed to him at the `termination' meeting on 29 September 2005; and v the admission from Mr Rossi, in cross-examination, that he advised Mr Pritchard during that termination meeting of an intention to continue the employment relationship. He had said words to the following effect: "We will offer you a second agreement based on NSW only and $80,000 [per annum] including tax and super plus 10% commission on sales invoiced and a reduced target of $750,000. " 49 The re-engagement proposal had offered continuing employment, albeit at a reduced rate and with a new probation period. That was evidenced by: v the recollection of the Applicant that the letter containing the re-engagement offer had been handed to him during the termination meeting; v the confirmation by Ms Whiteread, in cross-examination, that she had not considered that his employment had been terminated; that she had considered his employment to be on-going; that, based on that belief, she had not paid him out his accrued statutory entitlements; and that those statutory entitlements continued to accrue until his ultimate dismissal on 16 November 2005 termination; v the confirmation by both Mr Rossi and Ms Whiteread, in cross-examination, that the termination of the Applicant with less than a week's notice, was not a deliberate intention on their part to breach the employment contract; v the confirmation by Messrs Rossi and Hayes that the Applicant had continued his attendance at the Seminar after the meeting concluded on 29 September 2005; and v the confirmation by Mr Rossi that the Applicant and two other workmates had joined him and his family for drinks at the hotel and he had gone on to invite the Applicant to join his family for dinner. 50 It was submitted that it was odd behaviour for persons who had, earlier that afternoon, terminated a working relationship to socialise with one another after work. 51 It was pointed out that, in the absence of a contractual capacity to make payment in lieu of notice, the Applicant was entitled to receive a notice period of one week. Therefore the Respondent had breached the first contract by dismissing the Applicant on 29 September 2005, effective the following day: Sander v Snell (1998) 196 CLR 329. 52 As the termination of the first contract, and the breach thereof, had not been consensual, the Applicant's employment was not terminated as at 29 September 2005. His employment had been ongoing albeit the terms of his contract were amended by a reduction of $20,000 per annum in his salary, the limitation in his responsibilities to NSW, the reduction in his sales target to $750,000 per annum and the extension of his probation by a further three months. 53 It was argued that even if notice had been validly given on 29 September, the termination would not have become effective before 06 October 2005, three days after the revised contract was deemed to commence. The meant that not only was the Applicant's service continuous, but the second probation period was determined during the currency of the employment. Regulation 6 requires that the probation period be determined in "advance". 54 It was concluded that even if the Commission rejected that argument and found in favour of the Respondent in relation to there being a new and distinct contract, the Commission would also find, consistent with the obiter of the Full Bench in Austeck v Atsalos (2003) 128 IR 141 that the procedure adopted by the Respondent [in terminating and then re-engaging the Applicant] was a sham, contrary to public policy and void as it was designed to avoid the applicant's legal entitlements, including as to unfair dismissal. All that the Respondent had succeeded in doing was extending the Applicant's probationary period. It was pointed out that the mere extension of the probationary period does not serve to defeat the Commission's jurisdiction as the period was determined during the currency of the employment and not in advance as required by the Regulations. 55 It was submitted by the Respondent that the Applicant had made a number of bold assertions during the initial interview about his knowledge, experience and number of leads he had in that field. Mr Rossi had relied on those assertions in arriving at his decision to employ the Applicant. 56 It was contended that the evidence indicated that there were two separate and distinct employment contracts, 04 July - 29 September 2005 and 03 October - 16 November 2005 respectively. Each contract contained a 3-month probationary period. The terms of each contract had been negotiated, agreed and signed by both the Applicant and the Respondent. Both contracts had been terminated during their probationary periods by written notice provided by the Respondent. 57 Mr Rossi's evidence indicated quite clearly that the Applicant's first contract was terminated by provision of a written notice on 29 September 2005 citing poor performance as the reason. The uncontradicted evidence before the Commission indicated that there was a good and cogent reason for the first dismissal. The Applicant had not made a single sale up until that dismissal. 58 Mr Rossi had insisted, in cross-examination, that the targets he had set the Applicant were reasonable and pointed out that the Applicant had been provided with approximately 800 contacts to work with at commencement of employment. The Applicant conceded, in cross-examination, that he had indicated to Mr Rossi, during the initial employment interview, that he could meet the Respondent's objectives, including an annual sales target of $1.5 million and the quarterly sales target. 59 The Respondent's evidence indicated that the Applicant was repeatedly advised that he had to meet weekly targets of a minimum of 8 face to face meetings with prospective clients and 40 closed activities per week - at the interview with Mr Rossi on 09 June 2005; at the meetings held every Monday morning (the "huddle"); at the sales meetings held every Friday afternoon with Mr Hayes when they went over the spreadsheets setting out the work undertaken during the week; and during discussions with Mr Hayes when he visited Sydney on 16-18 August 2005. 60 Despite the Applicant's denial of any knowledge of set targets, he has admitted to using the "Efficiency" program to enter data about his activities, including meetings he had attended. 61 Contrary to the assertion that the Respondent had deliberately breached the terms of the first contract, the evidence indicated that the intention of the Respondent was to take all necessary steps to lawfully terminate the Applicant. In any event, the situation has since been remedied by the provision of notice and payment of all entitlements. 62 The Respondent did not have to re-engage the Applicant. However, in an attempt "to make the employment work", the Respondent did what it was legally entitled to do. In preference to dismissal, it offered the applicant a second agreement which substantially reduced his area of responsibility, sales target and annual salary. In that regard, the Respondent relied on the judgment of Deputy President Sams in Creedon v Cardon Limited t/as Footrest Shoes [1999] NSWIRComm 269. 63 Ms Whiteread gave evidence that she had prepared the second contract based on advice she had received from Business SA as to how the revised employment terms could be lawfully implemented. She had been advised that the probationary period could not be extended but that it was possible to negotiate a new contract which included a probationary period. She got Mr Rossi to sign it on 29 September 2005 before leaving the office. The applicant signed it on 30 September 2005. 64 The assertion that the second contract was a sham arrangement and ought to be considered as merely an amendment of the first contract was strongly rejected. Even if there had been a breach of the notice provisions of the first contract, it did not override the fact that, firstly, a termination had occurred; secondly, the parties evinced an intention to enter into a new contract; and, thirdly, all the elements of a valid contract were demonstrated. 65 The Applicant is of English extraction and quite clearly has a good command and understanding of the English language. It was pointed out that there was no suggestion by him that he had entered into the second contract under duress or that he lacked understanding of its contents when he signed it. Neither had he suggested at any time prior to its termination that it was anything other than a fresh contract. 66 It was argued that the Applicant was attempting to rewrite the clear terms of the second contract and to retrospectively ascribe to the parties different intentions to those held by them at the time oral agreement was reached and subsequently recorded in the contract. Such an interpretation was not available to be made and was contrary to the rule established in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 wherein Mason J held that evidence of surrounding circumstances was inadmissible to contradict the language of a contract when it has a plain meaning. 67 It was pointed out that the second contract was admitted by the Applicant. The language used in that contract is capable of "plain meaning". It included a new probationary period which was obviously determined in advance. It was contended, therefore, that the terms of the second contract should be observed and the termination, which occurred during its probationary period, be held to be lawful. 68 In response, it was submitted by the Applicant that, assuming that the pre-contractual representations he had made as to his performance were relevant to the issue, such assertions were prior to the Applicant becoming aware of the Respondent's poor sales history in New South Wales and New Zealand. Mr Rossi admitted in cross-examination that he had not advised the Applicant of that history during the interview. It was submitted that the Applicant's version ought to be accepted as to the aspect of the June 2005 employment interview relating to the level of sales expected of him in the first 3, 6 and 12 months of employment. 69 It was pointed out that the evidence established that Ms Whiteread spoke with business SA after the "termination" meeting on 29 September 2005 and therefore the advice from that industry organisation could not have been used to structure the termination as was alleged by the Respondent. 70 It was contended that the first contract had remained afoot as the Applicant had refused to accept the Respondent's attempts to repudiate it. He did acknowledge, nevertheless, that valid contractual negotiations had taken place regarding his continued employment the outcome of which, in the Applicant's view, was an amendment to the first contract and, in the Respondent's view, was a wholly new contract. The uncertainty and ambiguity that existed related to the status of the first contract after the 29 September 2005 meeting. It was contended that the rule established in Codelfa provided no assistance in determining that issue and the more appropriate finding in the present circumstances would be that the second contract was merely an amendment. Consideration 71 Section 83 (2)(b) of the Act relevantly provides that: 83 (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes:.... (b) employees serving a period of probation or qualifying period.... 72 Regulation 6 (1)(c) states: (6)(1) For the purposes of section 83 (2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act: (c) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either: (i) the period, or the maximum duration, is 3 months or less, or (ii) if the period, or the maximum duration, is more than 3 months - the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment, ....." 73 The Applicant's first letter of offer of appointment was dated 17 June 2005. It provided for a 3-month probationary period during which time employment could be terminated by either party giving one week's notice otherwise, upon its successful completion, the Applicant would receive confirmation in writing of its successful completion. The Applicant accepted those terms and conditions by appending his signature to the acceptance form on 24 June 2005. 74 The Applicant commenced on the payroll on 04 July 2005. Technically, that probationary period would have expired on 04 October 2005. However, it is noted that his probationary period related to his classification as New South Wales/New Zealand Business Development Manager. It was common ground that during the period 04 - 11 July the Applicant was classified as being on a sub-contract arrangement pending the resolution of a business visa for him. 75 Neither party pursued that point and, in any ever, whatever commencement date is selected, it makes no difference to the fact that the parties met on 29 September at which time the Applicant was advised that his performance had not been satisfactory. On the Respondent's admission, the Applicant had been terminated without the provision of one week's notice, contrary to the provisions of the contract of employment. 76 The evidence strongly suggests that the Respondent intended, subject to agreement being reached with the Applicant, to continue the employment relationship for a further trial period. I have no doubt, given the representations the Applicant had made about his abilities, that the Respondent was hopeful that he would come through for them. Ms Whiteread confirmed that was the intention of management when they went into the meeting and the concluding sentence in the termination letter supports that view. I also have no doubt that, had Mr Pritchard rejected the terms of the offer of alternative employment, his employment would have ceased immediately. 77 The contention that the Applicant had refused to accept the Respondent's attempts at repudiating the contract is not substantiated. There was no evidence before the Commission of any negotiations or discussions regarding a further probationary period. It was the Applicant's contention that he had been provided with the second offer of employment at the termination meeting on 29 September. He did not sign the acceptance form until 30 September 2005. There was no evidence before the Commission that the Respondent applied pressure on the Applicant to provide the indicate acceptance when he hid or that Applicant sought further time in which to obtain legal advice. 78 I reject the submission that the Respondent's actions were a "sham", contrary to public policy and void in that they were designed to thwart any attempt to seek relief in relation to an alleged unfair dismissal. The Applicant cited the observation made by the Full Bench of the Australian Industrial Relations Commission in G G Maxwell v Acacia Resources (unreported, Ross VP, Drake DP and Lawson C, 31 October 1997, Print P6396): [A] purported variation of a contract of employment with the substantial purpose of avoiding the termination of employment provisions in the Act may not give rise to a valid variation as it is not for a lawful purpose. Stipulations in employment contracts by which the law is brought into public disrepute have been held to be contrary to public policy and will render the term illegal and void: see Re Beard, Beard v. Hall [1908] 1 Ch 383; Napier v. National Business Agency Ltd [1951] 2 All ER 264. 79 The Applicant was on a very generous contract. Yet, by the conclusion of the first quarter, he had not achieved a single sale despite making bold assertions during the initial interview about his knowledge and expertise and the leads he already had in that field of sales. Having invested in his training and employment for three months, it is hardly surprising that the Respondent would want to give it another shot prior to making any final decision about his future employment with the company. The evidence is clear, however, that had the Applicant refused to enter into a new contract with reduced salary structure, his employment would have concluded. 80 The Respondent did seek advice as to how to continue the employment relationship while at the same time impose another probationary period. The Respondent has a right to obtain such advice from its employer organisation, particularly when it cannot be certain of the employee's performance in a role. The Respondent had relied on the advice of that organisation. It cannot, therefore, be held that its motives were to bring the law into public disrepute. The Respondent intended that whatever action it took in the best interest of the firm were legal. Whilst appreciating the Respondent's motives, the facts lead to a different conclusion. 81 Mr Hayes confirmed that during the first period of engagement, it was at his suggestion that the Applicant concentrated his efforts in New South Wales and ignored the New Zealand market. The second contract of employment therefore did not relate to a new position - it was the exact same position with the exception that the salary aspect of the contract was amended to reflect that revised role. The termination letter noted that, "Your current package being well above market rates for your skills." 82 The Applicant had already undertaken a 3-month probationary period in that role and had not achieved a single sale. Indeed, the termination letter alluded to those concerns, "1. Concerns about your skills and experience, in particular due to our expectations as a result of interviews prior to engagement. 2. Demonstrated behaviours over the last three months resulting in concerns about your abilities as a Business Development resource..." 83 The contract provides for only one mode of termination during the probationary period - a week's notice. In my view, whether the offer of further employment was made at or following the 29 September termination meeting, or whether the Applicant returned to the Seminar following the termination meeting, or socialised with the Managing Director and his family after work on that day, are immaterial. 84 The second contract was expressed to commence on 03 October 2005. The requisite notice period for the first contract was not provided. Attention was drawn by the Applicant to the High Court decision in Sander v Snell (1998) 196 CLR 329 at 337: In terminating the respondent's employment, the Bureau did not act under cl 9(a) of the contract of employment. It did not contend at the time of the termination (and has not contended subsequently) that the respondent had been absent from duty without authority or was guilty of misconduct. Rather, it sought to act under cl 9(b). Only cl 9(a) speaks of payment of salary in lieu of notice. Clause 9(b) does not refer to payment of salary in lieu; it speaks only of "two months notice of intention to terminate the employment" being given by either the Bureau or the employee. The contract being cast in these terms, it is not possible to imply in it some term that would permit the Bureau to make payment to the respondent in lieu of notice except in the cases specifically identified in cl 9(a) - absence or misconduct[11]. To imply such a term would fly in the face of the express provisions of the agreement[12]. It follows that for the Bureau to terminate the contract of employment under cl 9(b) without first giving the notice stipulated in that clause would be a breach of the contract, unless the parties agreed to the contract being terminated in this way. (emphasis added) 85 As indicated earlier, there was no evidence before the Commission that the parties had specifically agreed to the contract being terminated in the manner that it was. It is implied that there was agreement because the terms of the revised agreement were accepted. There was not a clean break in the employment relationship and a fresh start. 86 There were no submissions made by either of the parties as to the reasonableness or otherwise of having a probation period in excess of three months. Decision as to Probationary Employment 87 It is my considered view that the employment of the Applicant was continuous and therefore the "maximum" duration of the probationary or qualifying period was not determined in advance as required by the Regulations. Was the Applicant an Award Employee? The Issue 88 The Respondent held the view that the Applicant was a non-award employee. It sought to amend its reply, filed on 12 December 2005, to include a reference to another jurisdictional issue relating to a contention that the Applicant's remuneration had exceeded the statutory limit and therefore he was precluded from bringing an application for relief from an alleged unfair dismissal. Submissions 89 It was asserted by the Applicant that he had been employed as a Commercial Traveller pursuant to the provisions of the Commercial Travellers (State) Award ("the award"), an assertion which had not been contested by the Respondent in its reply. 90 Attention was drawn to the award definition of "Commercial Traveler" as being a person falling within the jurisdiction of the Commercial Travelers (State) Industrial Committee. 91 The jurisdiction of that Committee was considered in National Union of Workers (NSW Branch) v Modern Roof Restorations (NSW) Pty Ltd [1999] NSWIRComm 31 (11 February 1999). 92 It was submitted that his job description fell squarely within the industries and callings of the said award as he had given uncontested evidence to the effect that he was employed to spend the majority of his time away from the office soliciting orders for the sale of the respondent's computer products for use by exporters in the course of their business. 93 It was concluded that the Applicant's conditions of employment were set by an industrial instrument and, accordingly, the requirement of s83 (1)(b) was satisfied. 94 It was submitted by the Respondent that the Applicant's conditions of employment fell outside the terms of the Award. It was argued that the Applicant did not satisfy the conditions required in order for the award to have application. Attention was drawn to the unrefuted evidence that the Applicant conducted the majority of his work from within the New South Wales office. He had a weekly target which required him to attend 8 face-to-face meetings per week out of the office. Each meeting was expected to take approximately 2 hours. 95 In addition, it was argued that the Applicant had not been engaged in soliciting orders of the type described in the award. It was contended that "software" lacks the corporeal nature that characterises "articles, goods, wares, merchandise or materials". The Applicant had confirmed in his affidavit that he was engaged to sell "Trident Global" which is a Global Trade Management system..... A typical software package including after sales service and maintenance/administration fees.... ". 96 The Respondent relied on the definition of "software" in The American Heritage Dictionary of the English Language, Fourth Edition, (Copyright 2000 by Houghton Mifflin Company): "The programs, routines, and symbolic languages that control the functioning of the hardware and direct its operation" and in The Free On-line Dictionary of Computing , Denis Howe, 1993-2005, "The instructions executed by a computer, as opposed to the physical device on which they run (the "hardware')." 97 It was concluded that, on those bases, the Applicant was not employed within the jurisdiction of the Commercial Travelers (State) Industrial Committee and therefore was not an employee engaged pursuant to an award. 98 It was further argued that the Applicant's employment had fallen beyond the scope of the Award as he had been engaged as a Business Development Manager and was responsible for managing the Respondent's New South Wales office. His job description included such management responsibilities as: v participating in strategic reviews of accounts; v negotiating schedules for client implementation and payment; v preparation of proposals for company management and then client sign off; v liaisons with alliance partners and influencers; v identification areas for product development. It was contended that the scope of his management responsibilities was inconsistent with that of an award employee. 99 The Applicant submitted in reply that the contention that mere classification of the Applicant as a Manager precluded award coverage was "nonsense". There was no case law nor principles of award interpretation support for such a contention. 100 It was argued that, apart from the dictionary definitions of "software", there was no support for the argument that the jurisdiction of the Committee is only in relation to "articles, goods, wares, merchandise or materials" that have a "corporeal nature". It was pointed out that the jurisdiction explicitly includes the term "wares" and, in the absence of any distinction being made between "software" and other "wares", a commonsense reading of the term would allow one to deduce that "software" is a subset. That approach, it was submitted, was supported by the Macquarie Dictionary (3rd Edition 1997) which provides that the term "software" is derived from "[soft + ware]". 101 It was further argued that the Respondent's narrow interpretation of the award was contrary to the basic premise that awards must be interpreted as common sense living documents that incorporate changes in culture and technology. 102 Adopting the Respondent's approach as to the targets it says the Applicant was required to meet, he would have had to attend 8 face-to-face meetings per week, each of approximately 2 hours duration, plus traveling time to and from those meetings. That would mean that he would be on the road for in excess of 20 hours per week thereby establishing, on the Respondent's own analysis, that it was intended that his primary place of work was away from the Sydney office. 103 In addition, the Applicant had confirmed, in evidence-in-chief, that his position required the majority of his time to be spent away from the Sydney office yet he had not been cross-examined on that point . Consideration 104 Clause 6 of the Commercial Travellers (State) Award relevantly reads: Industries and Callings All persons in the State, excluding the County of Yancowinna, employed away from the employers place of business soliciting orders for articles, goods, wares, merchandise or materials or promoting sales or orders in addition to soliciting orders for articles, goods, wares, merchandise or materials , including (but without limiting the generality of the foregoing) persons employed away from the employer's place of business: (a) by a wholesale or party wholesale warehouseman or by a manufacturer, manufacturer's agent or indent agent for the purpose of soliciting orders for articles, goods, wares, merchandise or materials: (1) for resale: or (2) for wholesale sale; or (3) for use in the manufacture, production, distribution, assembly, packaging or preparation of commodities for sale;.....[Emphasis added] 105 Mr Rossi gave evidence that he had advised Mr Paterson of the expectations he had of the successful applicant for the position of Business Development Manager. Those expectations included, inter alia, the ability to focus purely on attaining new business, have at least 4 years previous experience in selling software, and have experience in selling applications. 106 The Job Description provided to Mr Pritchard clearly indicates that the basic objectives of his role was responsibility for the sale and promotion of company products and services to new business. His annual salary included a sales incentive based on the successful invoicing of products and services. The sales target he was expected to meet during the first quarter of employment was a combined $1.5 million for New South Wales and New Zealand. During the second quarter, the annual sales target was $750,000 for New South Wales only. 107 Ms Whiteread gave evidence with respect to the car parking expenses that she expected the Applicant to spend two days a week in the office when he was in Sydney and the rest of the time he was to be out and about doing sales work. Decision as to Award Coverage 108 I accept the definition of "software" as defined in the references provided by the Respondent. The Applicant was engaged to sell a global trade management system for exporters of goods. That package included after sales service and maintenance. I am inclined towards the argument by the Applicant that the definition is not limited to "articles, goods, wares, merchandise or materials" that have a "corporeal nature" and that a commonsense interpretation of the term "ware" would result in "software" being considered as a subset of that term. 109 Mr Pritchard was clearly employed substantially away from the employers Sydney place of business for the purpose of, inter alia, soliciting orders or promoting sales or orders. If the applicant was not an Award employee, were his earnings such that he was excluded by operation of the regulations? The Issue 110 An employee whose conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than the amount prescribed by the Regulations is precluded from making an application pursuant to s. 84 of the Act for remedy in relation to an alleged unfair dismissal. At the relevant time, the amount prescribed in the regulations was $94,900 per annum. 111 The first contract provided that the Applicant would be employed in the capacity of NSW/New Zealand Business Development Manager earning $100,000 per annum, inclusive of superannuation, plus commissions. He worked in that capacity from 12 July to 30 September 2005. 112 The second contract provided that he would be employed in the same capacity but his area of responsibility would be confined to New South Wales only. There was a consequential reduction in his annual salary to $80,000, inclusive of superannuation, plus commissions which could amount to an additional $75,000 per annum. He worked in that capacity from 03 October to 15 November 2005. 113 The Respondent contended that, as the Applicant's conditions of employment were not set by an industrial instrument and his annual remuneration exceeded the statutory limit, he was precluded from bringing an application for relief from an alleged unfair dismissal. Submissions 114 It was submitted by the Applicant that his remuneration at the time of his ultimate dismissal was not greater than the amount prescribed in the Regulations and that he was eligible to bring such a claim. 115 It was conceded that, during the month of October 2005, the Applicant had received a modest payment of commission in addition to his base annual salary of $80,000. However, it was not disputed that he had no entitlement to commission during the month of November and had received only his base annual salary. 116 The Applicant relied on the Full Bench decision in Austeck wherein it was held that the level of annual remuneration for the purposes of s83(1)(b) of the Act, as set by regulation 5(1) of the Regulations, is to be determined by the rate of remuneration at the instant of dismissal. 117 It was concluded that, on that basis, the Applicant was entitled, at termination, to receive only payment of his base salary of $80,000 per annum, and therefore his annual remuneration was within the Commission's jurisdiction for the purposes of s83(1)(b). 118 It was argued by the Respondent that the Applicant's annual remuneration on the day prior to his dismissal had exceeded the amount prescribed by regulation. 119 The Respondent also cited relevant excerpts from the decision in Austeck as authority for its contentions. 120 Attention was drawn to correspondence received by the Respondent dated 01 and 15 December 2005 in which the Applicant calculated his expected "On Total Earnings" during the first and second periods of employment as $250,000 and $180,000 respectively. 121 The $250,000 was made up of his base annual salary of $100,000 plus commissions of $150,000. The $180,000 was made up of the annual base salary of $80,000 plus commissions of $100,000 per annum (calculated on the applicant's estimation that he would have earned $75,000 in commissions for the 9-month period between 03 October - 30 June 2006). The Applicant would therefore have been entitled to, and expected to earn, $180,000 in the course of one year if he had performed his duties under the contract and earned commissions in accordance with the terms of the contract. 122 It was concluded, therefore, that in accordance with the precedent set in Austeck, the Applicant, by reason of his remuneration, is excluded from making an application for relief for unfair dismissal. 123 The Applicant submitted in reply that the Respondent appears to have missed the important distinction made in Austeck that the rate of remuneration is set by an "entitlement" to the monies "at the time of termination" as opposed to the "possibility" of monies at the time of termination. In Mr Pritchard's case, no commission was payable to him on termination because he had not achieved the relevant sales budget. Consideration 124 Section 83 (1)(b) provides that Part 6, Unfair Dismissals, applies to the dismissal of any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than, at the relevant time, $94,900 per annum. 125 Both parties cited extracts from the Full Bench decision in Austech in support of their respective contentions: [45] .... We consider that the expression "annual remuneration" should be construed as the rate of remuneration fixed by the contract of employment at the point of termination. The word "annual" in the context in which it appears, conditions the word remuneration so that the expression "annual remuneration" is given the meaning - the rate actually fixed as the contractual yearly remuneration..... [51]... it would be necessary to look at the applicant's contract of employment to determine what the applicant was entitled to in terms of remuneration (as opposed to what he or she might have been paid), to annualise the remuneration if necessary , and compare the outcome to the prescribed amount.....[Emphasis added] [55] In circumstances where an applicant may have been wholly or partly remunerated by commission, again it would be necessary to consider the terms of the employment contract. The guiding principal, however, is not what the applicant received by way of commission payments but rather what the applicant was entitled to under the employment contract at the time of termination of employment.....[Emphasis added] Decision 126 In view of the determination made above that the Applicant was an award employee, there is no necessity to go into detail in relation to this matter save to indicate that the determination, based on the principles laid down in Austech, would have been in favour of the Applicant. The Substantive Merits of the Case The Evidence First Employment Contract 127 Mr Rossi confirmed in his affidavit evidence that when the Sydney representative left the company's employment in 2001, New South Wales was looked after by a sales representative engaged and based in the Adelaide office. When that salesperson's employment ceased, he received an approach from Tim Patterson, Senior Consultant with the recruitment firm Bladen Taylor & Associates, who indicated that he had on his books people who were capable of meeting the company's requirements. Owing to the fact that prospects in New South Wales had built up over that time, a decision was made to re-open an office in Sydney and have it manned from Sydney. By that time, eight sales of the system had been made in New South Wales and four in New Zealand at a cost of between $10,000 and $170,000 per system. 128 One of those persons on Mr Patterson's books was Mr Jason Pritchard, a British national, who held a business visa, a condition of which was that he had to have work in Australia. 129 Mr Pritchard stated that at the time of his engagement by the Respondent, he had 16 years' experience in the field of sales generally. Of those 16 years, 8 years were in software sales. He stated that during his employment with a firm called IDS Enterprise Systems Pty Ltd, he had achieved sales $0.1 million above the $1.5 million annual budget he had been. 130 It was not disputed that Mr Pritchard attended two interviews with Mr Rossi for the position of Business Development Manager (New South Wales and New Zealand) on 08 and 09 June 2005. The role was principally to be on the road selling the company's product known as "Trident Global". 131 "Trident Global" is a global trade management system at the high end of the market for use in the distribution of commodities for export sale. The cost of a typical software package, including after sales service and maintenance/administration fees, was $100,000. Although that system had been on the market since 1991, only approximately 120 systems had been sold Australia-wide, mainly in the States of Victoria and South Australia. The total number of potential purchasers of this type of system in Australia was approximated to be 2000. 132 Mr Pritchard confirmed that he had prepared a 7-page document headed "Company & Position Questions" which he discussed with Mr Rossi at the interview on 08 June 2005. He confirmed that he had included in that document an assurance that, because of his vast experience, his training period for the position of Business Development Manager would be considerably shorter. 133 It was also not disputed that during those interviews, Mr Rossi had explained to him the targets that he needed to achieve in that job (that is, $1.5 million in sales per annum - split equally between New South Wales and New Zealand) and that he had assured Mr Rossi that he could achieve those targets. Those targets were set out in a Schedule to the Contract of Employment. 134 Mr Rossi was allowed access to his personal notes relating to both pre-employment interviews held with the Applicant. He agreed, in cross-examination, that the letter of appointment, the job description and his handwritten notes of the interview amounted to the entirety of the contemporaneous records he had kept of the meetings of 08 and 09 June 2005. 135 He could not identify anywhere in his handwritten notes where he had made a notation of having told the Applicant of the requirement for 8 face-to-face meetings with prospective clients and 40 closed activities per week. Neither was there any mention in those notes of key performance indicators (KPIs). Nevertheless, Mr Rossi did not accept that the notes reflected all that was discussed at the interviews on 08 and 09 June, 2005. He relied on other documents such as the job specification and the job co file which were also provided to the Applicant and also referred to during the interviews. "Closed activities" were defined as including making telephone calls, sending and receiving emails, sending or receiving letters or reviewing a past activity to decide how to action it. 136 He agreed that nowhere in the 2-page job description relating to the first contract was there a reference to KPIs, 8 face-to-face meetings or 40 closed activities. Mr Rossi recalled that during discussion on four points listed in that part of the document headed "Uses and maintains the company CRM software efficiency," they had discussed the targets as they related to the use of the program "Efficiency" for managing prospects in a given territory. 137 Mr Pritchard denied that Mr Rossi had explained to him during those interviews that he had to meet any weekly targets in relation to meetings and activities or that those issues had been covered during his induction training. 138 Nevertheless, he agreed that Mr Rossi had explained to him the use of a tool called "Efficiency" which was used to manage those activities. It allowed him to enter details of those activities on to the computer so that prompts may be provided to him, at the appropriate time, for certain follow up actions to be undertaken. He agreed that he had received approximately two days' training on that program. 139 Mr Rossi rejected the assertion that he had assured Mr Pritchard, during his second interview, that no sales were expected of him in the first three months, that one or two sales would be expected in the next quarter and he should be able to perform comfortably thereafter. 140 Written confirmation of the appointment was forwarded dated 17 June 2005. The letter of appointment included the following terms: v Commencement date: 04 July, 2005; v A base remuneration package equivalent to $100,000 per annum, inclusive of superannuation contributions, payable monthly; v An incentive payment based on the successful invoicing of products and services; and v A three-month probationary period during which employment may be terminated by either party providing one weeks notice. Upon its successful conclusion, the employment would be confirmed in writing. 141 The Applicant entered into a subcontracting arrangement with the Respondent for the period 04 - 12 July 2005 while the issue of a business visa was resolved. Formal employment commenced on 12 July 2005. 142 The Applicant spent the first three weeks, commencing from 04 July, at an induction course in Adelaide. He admitted that the training had included information on the Monday Morning Huddles - meetings at which spreadsheets, required outcomes and targets were reviewed. 143 Ms Whiteread agreed, in cross-examination, that during that induction, the Applicant had made some useful contributions which she had set out in an email to Mr Rossi. However, even though she had appreciated his positive contributions, she denied that the comments had reflected her true feelings about him. In re-examination, she explained that she did not mind being asked questions during the induction training, however, Mr Pritchard's interjections got to a point where the induction was taking far too long and was becoming frustrating. 144 Mr Pritchard commenced to undertake full-time duties on and from 25 July 2005. 145 Mr Rossi insisted, in re-examination, that he had advised Mr Pritchard of the weekly targets he was supposed to meet. In addition, when Mr Pritchard commenced employment, he had available to him, in "Efficiency", approximately 800 prospects rated A, B and C and another 180 not yet rated. Of those 800, there were 100 with face-to-face meetings that were able to be converted to a sale within a 12-month period. In Mr Rossi's opinion, the goals set for the Applicant were achievable given the number of rated prospects already available to him. Indeed, he recalled that Mr Pritchard had stated that he could achieve those targets. If the Applicant had achieved those targets then, in his opinion, he would have been able to achieve the $1.5 million target in the contract. 146 Mr Hayes became Mr Pritchard's direct manager approximately a fortnight before his first trip to Sydney in early August 2005. 147 He insisted that he had given specific KPIs to Mr. Pritchard as at 06 September 2005. 148 The Applicant did not achieve a single sale during the first three months of employment. First Dismissal from Employment 149 Mr Pritchard denied that he had been put on notice by Mr Rossi, during the probationary period, that he would be dismissed from employment if he failed to meet the targets. 150 Mr Pritchard was attending training in Adelaide on Thursday, 29 September 2005 when he was called out of the Workshop to attend a meeting with Messrs Rossi and Hayes and Ms Whiteread. His employment was terminated effective 30 September 2005. Mr Pritchard stated that he returned to the Workshop when the meeting ended. 151 Mr Rossi stated that he had terminated the Applicant because he had serious doubts about his skills and because of the issues raised in the letter of 06 September. The Applicant had raised his expectations as to his skill level during the employment interview when he indicated that his "ramp up time will be considerably shorter.... I believe I will be instantly empowered to assist and to help your organisation rapidly achieve a large pipeline and its realisation of its sales and strategic targets" 152 He vehemently denied the assertion that the termination letter had been provided to the Applicant during the course of the meeting, insisting that the termination letter had been prepared and provided to the Applicant after the meeting. 153 Mr Pritchard contended that he was handed the termination letter, dated 29 September 2005, during the course of that meeting. It cited the following reasons for his termination: 1. Concerns about your skills and experience, in particular due to our expectations as a result of interviews prior to engagement; 2. Demonstrated behaviours over the last three months resulting in concerns about your abilities as a Business Development resource, please also refer to our letter dated 06 September 2005; and 3. Your current package being well above market rates for your skills. 154 Mr Rossi insisted that he had gone into the meeting with the applicant on 29 September with the intention of terminating his employment. However, a verbal offer of a second contract of employment was made to the Applicant during that meeting following representations from him as to prospective business in New South Wales. Attention became focused on closing the three prospects that the Applicant contended were ready to convert to a sale. Multiplying the sales value of those three prospects meant that the Applicant would be able to achieve the sales targets for the months of October and November and therefore earn commission. 155 Mr Rossi stated that, at the conclusion of the meeting with Mr Pritchard, he had instructed Ms Whiteread to contact Business South Australia for advice. She had reported back to him on the same day to say that she had received advice that they could not extend the probationary period, however, the Respondent could dismiss the Applicant and enter into a second contract with him which would include a probationary period with provision for an extension by a further three months. Ms Whiteread offered to prepare a new contract based on that advice. Mr Rossi insisted that he had signed the letter of offer relating to the second contract prior to leaving the office on the evening of 29 September. It encapsulated the terms of the offer made during the meeting. He had also signed off on the job description at that time. 156 Mr Rossi denied that the Applicant had been provided with the dismissal and re-engagement letters at the same meeting. He also vehemently denied that the employment was intended to be continuing. He insisted that the second letter of appointment was provided to the Applicant on 30 September 2005 with engagement in the new position taking effect from Monday, 03 October 2005. 157 Mr Pritchard denied that he had urged Mr Rossi to offer him a new contract with reduced targets and reduced remuneration and was emphatic that he had not indicated, as an inducement, that he had three prospective clients, ANZ Exports, Aussie Pulse and Ausscot, ready to complete sales by mid November 2005. He also denied emphatically that he held a long discussion with Mr Rossi during which negotiations ensued as to the contents of a new contract. He stated that it was Mr Rossi who had introduced the idea of a revised contract. 158 Mr Pritchard stated that he had not protested about the dismissal and subsequent re-employment under a new contract as he "was still being paid the same amount...". During cross-examination, he clarified that to mean that he was being paid the same gross salary but not the same total remuneration. During persistent cross-examination, he conceded that he had been wrong to state that he was being paid the same amount under both contracts. 159 He confirmed that he had received an advance payment of commission of $1,666 on 15 October, 2005 but insisted that it had been offered to him. He denied that he had requested that advance on those three sales that he expected to close by mid-November. 160 Mr Hayes confirmed that he had attended for part of the termination meeting held on 29 September 2005 and recalled that it was the Applicant who had raised the subject of being provided with a second chance. He denied that, while he was in attendance Mr Rossi had said to Mr Pritchard words to the effect that the Applicant would be offered a second agreement and detailed the scope of the responsibility, targets and pay attached to that agreement. 161 Ms Whiteread recalled being in attendance throughout that termination meeting. She further recalled that the Applicant was handed a letter of termination which she had prepared prior to the meeting. She recalled that Mr Hayes was present when the letter was handed to the Applicant. 162 She recalled that an offer of continuing employment was made to the Applicant but denied that the terms of the offer had been spelt out. 163 She agreed that she had been involved in discussions with Mr Rossi and Mr Hayes, prior to that meeting, about ways in which the Respondent could maintain the relationship with the Applicant after 29 September. 164 She agreed that she had received instructions to consult with Business South Australia about ways in which the probation period could be extended. She had contacted that organisation on 29 September but was not quite sure whether she had done so before or after the termination meeting. She was sure, however, that she had obtained the advice prior to preparing the 30 September letter of offer. 165 She had prepared the letter of re-engagement after the meeting and well before the close of business that day. She dated it 30 September 2005. She recalled that Mr Rossi had signed it just prior to leaving for the day, maybe 5.30 pm on 29 September. 166 Ms Whiteread contradicted herself later during cross-examination to state that the Respondent was prepared to terminate the Applicant based on occurrences prior to 29 September, however after the meeting she had been requested to contact Business SA to find out the mechanics of offering another contract. She, nevertheless, confirmed that prior to the commencement of the meeting, the Respondent was considering the prospect of continuing the relationship in one form or other. She agreed that the intention was reflected in the last sentence of the termination letter which read: "We hope that there may be an opportunity for us to continue our relationship with varied expectations and understandings." 167 She further agreed that she had discussed with Mr Rossi and Mr Hayes the goal they wanted to achieve at that meeting - a reduction in the Applicant's salary and some form of continuing probation. 168 She did not believe that she handed the letter of 30 September to the Applicant at the same time as his termination letter, however, she stated that she had no specific recollection as to when she handed it to him. 169 She confirmed that she was in charge of the payroll and was aware that all statutory entitlements were required to be paid out on termination. She agreed that she had not paid out the Applicant because in her mind he was not really terminated but was continuing on with the company in another role. 170 During re-examination, Ms Whiteread stated that the purpose of the meeting on 29 September was to terminate Mr Pritchard. However, she recalled that Mr Pritchard asked if he could be re-employed citing financial reasons for his request. The discussions that were held in relation to his request had not been specific in relation to the terms of re-engagement. Mr Rossi instructed her to call Business SA for the purpose of establishing where the firm stood in relation to the concerns it had with the Applicant and its requirement for a probationary period. 171 Mr Pritchard stated in his affidavit evidence that within an hour of his termination, Mr Rossi had invited him to join him and his family at the Pub for drinks that evening to watch Mr Rossi's son on a TV show. During drinks, Mr Rossi had asked him to join his family for dinner. During cross-examination, Mr Pritchard stated that the invitation had been issued by Mr Rossi's son. He corrected his evidence a third time to state that both father and son had invited him. Finally, he agreed that there were other people from the office present and he remained after they left prompting Mr Rossi to ask him if he would like to join them for dinner. 172 Mr Rossi stated that he had gone to the pub on the evening of 29 September, 2005 with other members of his family because one of his son's television programs was being shown there. He denied that he had invited the Applicant to join them. He was aware that the Applicant was also at the Pub and was watching the show but he had not invited him. It was initially a large group of people - some of whom were not employees of Trident Global. He agreed that he had later invited the Applicant to join his family for dinner. 173 Mr Rossi confirmed, during cross-examination, that he was aware of the company's policy in relation to disciplinary action and termination procedures. He conceded that the policy on termination procedures did not distinguish between probationary employees and non-probationary employees. He conceded that he had not followed that procedure in relation to disciplinary proceedings and termination of the Applicant. He further agreed that the Applicant had not been issued with any written warnings. He agreed that the Respondent had breached the procedures in relation to the notice period required to be provided to the Applicant by providing only one day's notice. 174 Mr Rossi acknowledged that he was required to pay Mr Pritchard his accrued statutory entitlements upon termination. He confirmed that he had not directed his staff to make such payments but refused to admit that such action was indicative of the fact that the Applicant had not been terminated as at 30 September 2005. 175 During re-examination, Mr Hayes confirmed that the Monday morning huddles commenced to be held with the Applicant from when his induction programme concluded on 26 July 2005 right up until his termination. If a public holiday fell in on a Monday, then the huddle would be held on the following day. They were conducted over the telephone. 176 During each huddle, they had evidenced on a screen how many KPIs each individual sales person had achieved. The statistics discussed included the number of closed activities, number of meetings booked, number of meetings held and the dollar value in the pipeline and sales, year to date sales value. The technology used allowed the Applicant to view the same screen. As the huddles involved all staff, the personal performance of staff members was not brought up. Mr Pritchard's personal performance was discussed with him during the Friday sales meetings he held by telephone with the Applicant and during the review sessions they held for a few hours whenever he was in Sydney. He insisted that he had informed the Applicant about his KPIs and told him that his activity level was not high enough to meet the number of face-to-face meetings that he needed. The Applicant was aware of his sales target in dollar terms. He was required to deduce, by working back from there, what activity was required to meet that dollar amount. He had advised the Applicant to stop wasting time on websites, marketing activities, sales strategy suggestions and so on and to focus on getting in front of customers. Second Employment Contract 177 Mr Pritchard was re-employed as Business Development Manager for New South Wales only. His letter of appointment, dated 30 September 2005, confirmed the following: v Commencement date: 03 October 2005; v A base remuneration package equivalent to $80,000 per annum, inclusive of superannuation contributions, payable monthly; v In addition to the base salary, an incentive would be paid based on the successful invoicing of products and services; v A notice period of one month for termination by either party except for instances of misconduct, in which case termination of employment would be summary; and v A three-month probationary period, with the option to extend for a further three months if required. This period is for the purposes of assessing your suitability for the position. During this period either party may terminate employment by giving one weeks notice. Upon the successful completion of this probationary period your continued employment will be confirmed in writing. 178 Schedule "A" of the second contract provided a reduced target for the New South Wales region of $750,000 for the balance of the financial year. 179 He had indicated his acceptance of that contract by appending his name to it and dating it on 30 September 2005. Mr Rossi had signed and dated it on 29 September 2005. Second and Final Dismissal 180 Mr Rossi signed the second letter of termination on 15 November 2005 so that Mr Hayes could hand it to the Applicant upon his arrival in Sydney the following day. 181 On 16 November 2005, Mr Pritchard arrived at the office to find Mr Hayes sitting at his desk. Mr Hayes advised the Applicant that he was there to terminate him and, in confirmation thereof, handed him a termination letter dated the previous day. The letter, signed by Mr Rossi, stated that he was terminated forthwith for his failure to respond appropriately to "warnings" raised with him, in both letters and emails, as to "unacceptable work procedures". 182 Mr Hayes denied that when he arrived at the Sydney office on 16 November he had deliberately wiped a number of personal files from the Applicant's computer. He explained that he had arrived at the office at about 8.50 am. He was uncertain about how the Applicant would react upon being advised of his dismissal and was concerned about leaving the Applicant alone with access to the computer if he had to leave the office for any reason. He had therefore logged into the laptop as his supervisor and changed the status of the Applicant's account from a user to a guest. He then issued the Applicant with a new password for use with his new guest status. The subsequent logging into Windows resulted in the system automatically deleting all of the Applicant's personal files. 183 Mr Hayes confirmed that exhibit SH9 was in his own handwriting. He had made those notes while they were attempting to recover the Applicant's personal material to install in a hard drive purchased by the Applicant after his dismissal. He confirmed that one of the files the Applicant had asked him to search in was C:\Program Files\Lime Wire\Share. He denied that he had maliciously deleted the Applicant's personal files stating that he had confirmed with an IT expert on the same day that the files had automatically been deleted upon logging in on the computer. Driving Skills 184 Mr Rossi travelled to Sydney to accompany the Applicant to meetings in or about 26 - 28 July. Mr Pritchard admitted that he had informed Mr Rossi that he had scheduled a meeting with a prospective client, Ausscot, on 26 July 2005 at 12 noon instead of at 3 pm. When they arrived at the meeting and discovered the error, Mr Pritchard postponed another meeting already scheduled for that time in order to attend the meeting with Ausscot. He denied, however, that when he drove Mr Rossi around in his Subaru WRX Impreza, that he ran through red lights, had numerous near misses with other road users, or that Mr Rossi had requested that he abide by the road rules and not drive in that manner. 185 Mr Rossi agreed that he, personally, had not complained nor counselled the Applicant in writing about his driving although it was a matter that greatly concerned him. He disagreed that he was greatly exaggerating Mr Pritchard's driving misdemeanours claiming that he had been terrified. 186 Mr Pritchard admitted that he had insisted on picking up Messrs Rossi and Bullock from their conference and driving them out to the airport on 28 July 2005. He agreed that he had been late and they had missed their flight to Adelaide as a result. He explained that he was late because he had relied on the time displayed on his laptop which was programmed on South Australian time and therefore was half an hour behind New South Wales. 187 He agreed that he had driven Mr Hayes to meetings during the period between 16 - 18 August 2005. He denied, however, that he had travelled at speeds over 100 kilometres an hour in North Sydney or that Mr Hayes had warned him to slow down. He confirmed that he had received correspondence from Mr Hayes dated 06 September 2005 in which he had been cautioned him, amongst other things, to "Please be aware that there are numerous legal issues with breaking road rules while undertaking work related duties." Nevertheless, he considered that to be "a general statement" and the improvement in his driving was purely an independent action on his part. 188 He had scheduled four meetings to be attended by himself and Mr Rossi on 24 August 2005. He agreed that the best potential prospects were the first meeting and the third meeting on that day. He further agreed that they had discussed, and agreed, that the first meeting which was with Ausscot would last approximately one hour. During cross-examination, Mr Pritchard confirmed that Ausscot was not ready to complete the deal. He denied that he had advised Mr Rossi that the negotiations with Ausscot had advanced to the stage where they were to sign off on the deal at the meeting that morning. He also denied that, owing to the misinformation as to the stage of negotiations with Ausscot, the meeting had lasted for approximately two hours and, as a result, he ran through red lights, had near misses with other road users, and driven dangerously in order to get to the next appointment on time. He further denied that Mr Rossi had asked him, on numerous occasions that morning, to slow down and suggested that the second meeting that morning could be rescheduled. Compliance with Policies & Procedures Downloading Software 189 Mr Pritchard acknowledged that the hand-written comments on the copy of the team manual tendered in the proceedings were his own. He admitted that he was aware of the following term in the manual: Downloading of unauthorised data from any Internet site must be approved by a Manager or the Network Administrator before any attempt to download. Any abuse of Internet access will be considered a serious misconduct. 190 He confirmed that he had participated by telephone in the Monday morning huddle on 15 August 2005 when Mr John Valeondis, Development Team Leader, informed all staff that he had discovered that someone had downloaded and installed a software sharing program called KAZAA. He further confirmed that after a pause, he had admitted that it was he who had downloaded that program. He denied, however, being aware that such a software sharing program exposed the Respondent's servers to a risk from hackers. Even though that program enabled the downloading of music files onto one's computer, he stated that he had not downloaded any files. 191 Yet in an email to Ms Whiteread dated 22 August 2005, Mr Pritchard stated: Last Monday's (August 15, 2005) GGOB Monday Morning Huddle Conference Call where the KAZAA download was mentioned. I stuck up my hand right away and took full responsibility; I did not know I had downloaded onto the Terminal Server. I guess getting used to the two environment's is a learning curve.... The rationale, for three nights I had worked the previously (sic) week, until midnight, half past midnight and around 10:00 pm. I needed stimulation and motivation so sought music, this has been fully removed by myself as of the close of last Monday's call. I am a human being and need stimulation and motivation.... [emphasis added] 192 Despite the contents of that email, the Applicant insisted that he had not downloaded any music files: "Yes, it's one thing to say I sought music, but did not deliver on that requirement or intention." 193 He agreed that Ms Whiteread had warned all employees not to download and install software such as KAZAA, indicating that it was illegal software. 194 Initially, Mr Pritchard denied that he had also received a warning from Mr Hayes in relation to downloading illegal software, a reminder about the company policy in relation to the computer network, and the terms of his employment in relation to KPIs. 195 Later during the cross-examination, however, he admitted that Mr Hayes had raised with him, on 16 August 2005, the fact that he had entered into a contract with Unwired without obtaining prior authorisation to do so. He denied that Mr Hayes had gone as far as informing him that installation of such programs was in breach of his employment terms and considered to be a dismissible offence. 196 Mr Pritchard agreed that when he received his termination notice on 16 November 2005, he had asked Mr Hayes for his Lime Wire files, however, he denied that he had 4 gigabytes of Lime Wire files on the computer. Lime Wire is another program for downloading music. He acknowledged that downloading music was unauthorised by company policy but did it nonetheless. 197 KAZAA had been downloaded on to the server and that was picked up by their IT staff as it was causing problems on the system in Adelaide. Ms Whiteread agreed, in cross-examination, that the Applicant had owned up to it and the software was deleted off the system. To her knowledge he had not, thereafter, downloaded any unauthorised software on to the server. 198 He had downloaded Lime Wire on to the C drive of his laptop computer. Although it had not impacted on the server, downloading unauthorised software on a work computer would have affected the speed of his connection. 199 In re-examination, Ms Whiteread stated that Mr Valiodis, their IT expert, advised her that the KAZAA software program would not only slow down the servers but had the potential to provide access to the Respondent's server system by external persons. 200 The Applicant had engaged Unwired without getting her authority to enter into such a contract. She acknowledged, however, that it ended up being a positive step to take "for a period", because it provided an avenue for contact with the Respondent's server while he was having other problems communicating out of the office in Sydney. She refused to accept, however, that it had not been an expensive exercise for the Respondent and would not accept that the issue of not obtaining authority was "a storm in a teacup". Claims for Re-imbursement of Expenses 201 The Respondent stated that it was not considered necessary to provide the Applicant with unlimited car parking at the business premises because his duties involved, predominantly, face-to-face meetings with prospective clients. That meant that he would be spending a considerable time out of the office. Mr Pritchard agreed that during the period of his first contract, he had two hours of free car parking available to him at the Westfield parking station at Bondi Junction. 202 Mr Pritchard agreed that on 01 September 2005, he had picked up Mr Hayes from the Airport and taken him back to the office. Although he had been provided with a permanent parking pass, he agreed that he chose not to return to the parking station to re-park his car in order to avoid payment of the excess parking fees of some $30-$50 when he stayed at the office for the balance of the day. He further conceded that on the following day, he once again parked in the two hour parking zone and did not take advantage of his permanent parking pass. Despite the fact that Mr Hayes had advised him that he could not claim, and he had agreed that he could not claim, he had sought and obtained re-imbursement of that fee as part of his expenses. 203 Mr Rossi confirmed that he had never observed Mr Pritchard making a false expense claim or purchasing equipment in the respondent's name without prior approval. He agreed that in his affidavit he had stated that he had based his decision to terminate the Applicant on 29 September, 2005 inter alia on the fact that the Applicant had purchased a wireless internet connection without prior approval. He conceded, on a reading of Ms Whiteread's affidavit, that he had approval from her, in an email dated 06 October, 2005, to use Unwired in order to connect with the Respondent's server in South Australia at different points. 204 In re-examination, Mr Rossi confirmed that the contract entered into by Mr Pritchard with Wireless had not been authorised by the company when he entered into it. In other words, approval was received after the event. 205 Ms Whiteread confirmed that the Applicant had not been reimbursed for the car parking expenses he incurred on 02 September 2005. Overall Performance 206 Mr Pritchard agreed that at the Monday morning huddles, each sales person gave a brief report on the prospects they had in the pipeline and at what stage they were at with each of the prospects. He denied that he had not achieved the KPIs stipulated for him stating that he had nothing to measure against. Mr Pritchard confirmed that he was aware of his annual target of $1.5 million and the fact that in order to achieve that annual revenue target, he needed to achieve activities and face to face meetings. 207 He agreed that, throughout the period of both contracts, he met with Mr Hayes every Friday to review his performance. On those occasions, they had discussed any face-to-face meetings he had attended. Mr Hayes reviewed the record of activities that he had recorded in the Efficiency program and both of them would summarise that information and record it on a spreadsheet of activities for the firm. It was therefore possible, from reading the information on the spreadsheet, to determine how many face to face meetings and closed activities the Applicant had achieved on a weekly basis. 208 During cross-examination, Mr Pritchard denied the evidence of Mr Rossi that during the period from 01 August 2005 to 5 August 2005 he had only attended three meetings with prospective clients and completed 21 activities. He contended that there was a discrepancy between the number of appointments and number of calls closed off because he was not able to enter the information on Efficiency. 209 He insisted that he had made a sale in that he obtained a verbal from a customer as evidenced by Mr Hayes' response: "Congratulations for the order, Jason". He eventually conceded during cross-examination that he had not achieved a sale that was invoiced in order to earn the incentive payment. 210 He denied that the intent of the correspondence received from Mr Hayes, dated 06 September 2005, was to counsel him to rectify his behaviour in relation to the progression of sales focusing on his prospecting, situational competency, punctuality, time management, car travel and observance of the policies/procedures in the team manual. 211 It was not denied that the Respondent rated prospects as being in categories A (a business chance within 12 months), B (a business chance within 2 years) or C (a business which already had some product but had a long term need in any event). Mr Pritchard agreed that in an email to him from Mr Rossi, dated 04 November 2005, concern had been expressed about him spending valuable time doing work the Marketing Manager was responsible for instead of attending to more pressing tasks such as rating his prospects: ....Again I am very concerned you are spending time in areas that are a waste of time. Please focus on Prospects in Efficiency eg you have 181 Prospects not yet rates????? 212 During re-examination, Mr Rossi confirmed that the disciplinary procedure and policy related only to those employees who had completed their probationary service. 213 Mr Rossi stated, during re-examination, that he had been provided with a copy of the letter written by Mr Hayes to the Applicant dated 06 September, 2005. He had discussed its contents with Mr Hayes prior to it being provided to the Applicant. He stated that its purpose was to achieve an improvement in the Applicant's performance by reminding him about a number of matters, such as, the progression of sales, focussing on prospecting, competency, punctuality, time management, car travel and team manual. 214 On 07 November 2005, Mr Hayes forwarded an email to Mr Pritchard in which he set out the activities undertaken by the Applicant during the period 10 October to 4 November 2005 as extracted from his own Efficiency reports. During cross-examination, Mr Pritchard argued that the figures were not correct in that there was a discrepancy of about 10 or 15 per cent. He admitted, nevertheless, that he had not raised that discrepancy with anyone from the Respondent company: For the period 3 October to 7 October 2005 - attended zero meetings and completed 10 activities For the period 10 October to 14 October - attended five meetings and completed 36 activities For the period 17 October to 21 October - attended no meetings and completed 49 activities (denied: 55 closed activities and zero meetings held). For the period 24 October to 28 October - one meeting and completed nine activities (don't know) For the period 31 October to 4 November - attended one meeting and completed seven activities (Cannot answer) 215 Despite having made representations about prospective clients on the verge of signing up, Mr Rossi discovered that ANZ was not in such a position because there were no funds available to spend at that time. It was he who had mentioned it to Mr Pritchard. 216 Included in the email of 07 November 2005 were the Applicant's KPIs which were to be reviewed each Friday with Mr Hayes. Mr Pritchard insisted that was the first occasion he became aware of his KPIs. 217 Mr Rossi denied that the global sales targets he had set the Applicant were wholly unachievable given the Respondent's history in the New South Wales market and given that the sales targets in New Zealand were even more unachievable. He agreed that during the 6-year period from 1999 to 2005, the company had only made four sales in New Zealand (4 x average sale of $80,000 = $320,000). Yet the applicant was expected to achieve $750,000 each in sales in New Zealand and New South Wales in one year. Mr Rossi argued that he had based the targets on the representations made by the Applicant as to his abilities in both his CV and the employment interviews. 218 Mr Rossi agreed that it may have been the first written confirmation of the numerical targets the Applicant had to meet but denied that it was the first occasion when the Applicant was provided with any specific KPIs. He did concede, however, that the email did not refer to 40 closed activities nor did it specifically advise the Applicant that he was not achieving his targets at that point. 219 Mr Pritchard confirmed that he had prepared the figures compiled in an Annexure to his first affidavit. He agreed that he had inserted the amount of $59,104 under the heading "actual sales" although it was not a sale that had eventually been invoiced. During cross-examination, he agreed that it should be struck out because it was not an actual sale. He had inserted it under that heading once he received the verbal okay from the client and received a congratulatory email for that order from Mr Hayes dated 11 November 2005. 220 The Applicant conceded that he had not achieved a successful invoice of products and services during the period of the second contract despite his target being set at (83,333 x 2) $166,667, however, he refused to concede the point that his performance had not improved. 221 He agreed that he had not achieved any sales that were signed off on during the whole period of, and after the conclusion, of his employment with the Respondent firm. 222 Even though he agreed that it was important to know what bank and what software a client uses so that the Respondent can develop software that interfaces with them, Mr Rossi argued that it was not important, at that point in time, to inquire from representatives of Nestle either what bank or what software it used. 223 Mr Rossi explained in re-examination that Mr Pritchard was aware that an average of five to six meetings were held with prospective purchasers prior to closing a sale. It was the first meeting with Nestle and the company had already informed them what software package they were using. The meeting had concluded, the Nestle representative had been thanked for his time and they were about to leave when the Applicant went on to ask inappropriate questions. 224 Mr Hayes agreed that in his letter to the Applicant dated 06 September he had not set out the face to face meeting requirements despite the fact that the intention was to advise the Applicant of the company's expectations as to his performance, the progression of sales, focus on prospecting, deal with situational competency, punctuality, time management, car travel, and team manual. He conceded that he had not set out, in writing, the KPIs, or numbers of face-to-face meetings, or the number of closed activities in that or any other document until 07 November 2005. He agreed that he could not point to any document before the 07 November document apart from his entry in his electronic diaries made prior to 16 August. 225 Mr Hayes conceded that nowhere, in his email to the Applicant dated 07 November 2005, which set out a review of his activities from Monday 10 October to Friday 4 November, did he advise the Applicant that he had not achieved the 40 closed activities that were the KPIs at the time. He did not believe that he had to because he used to speak to the Applicant on the phone weekly and meet in person almost fortnightly about the specific number of closed activities required of him. He had made a record of those discussions in his electronic diary but he did not have it on him. He later conceded that his electronic diary recorded the details of the meetings but did not mention any KPIs. 226 At the time of the Applicant's dismissal, Mr Hayes had been in the Respondent's employment for approximately 16 months. He had not been privy to the company's previous sales record in New South Wales at that time. He stated that the benchmark he had set the Applicant was from his experience as a sales person and not because there was a benchmark to test the Applicant's performance against in terms of number of sales. He did not resile from his belief that a sales target of $750,000 in the first year in New South Wales was reasonable even though that was more than the entire sales in the six years prior to that. 227 He also did not resile from the fact that the $750,000 target set for New Zealand in the first year of employment was reasonable even though it was double the achievement in sales of the Respondent in the six years prior to that as the Respondent only had four sales in that time. 228 During re-examination, Mr Hayes, confirmed that Monday morning huddles were held weekly except when it fell on a public holiday in which case it would be held on the following day. They were conducted over the telephone with the Applicant since the conclusion of his induction on or about 26 July until his termination. During each meeting, they had evidenced on a screen how many KPIs each individual sales person had done. The statistics discussed included the number of closed activities, number of meetings booked, number of meetings held and the dollar value in the pipeline and sales, year to date sales value. The technology used allowed the Applicant to view the same screen. His personal performance was not discussed with him during those meetings as those meetings involved the whole company. It was discussed with him during the Friday sales meetings he held by telephone with the Applicant and during the review sessions they held for a few hours whenever he was in Sydney. He insisted that he had informed the applicant about his KPIs and told him that his activity level was not high enough to meet the number of face-to-face meetings that he needed. He was aware of his sales target in dollar terms. He was required to deduce, by working back from there, what activity was required to meet that dollar amount. He had advised the Applicant to stop wasting time on websites, marketing activities, sales strategy suggestions and so on and to focus on getting in front of customers. Mitigation of Losses 229 Mr Pritchard commenced alternative employment, also as a Business Development Manager, on 03 March 2006 earning a base salary of $85,000 per annum, inclusive of superannuation, plus commissions. 230 He confirmed that Sue Bugg of Sara Lee had provided him with a reference to assist him with job hunting. He admitted that she was not aware that it was being used in these proceedings. Submissions 231 At the conclusion of the hearing, directions were issued as to the filing of written submissions. The parties were to specifically address the following issues: 1. Was the applicant an Award employee? 2. If the applicant was not an Award employee, were his earnings such that he was excluded by operation of the regulations? 3. Was the applicant a probationary employee at the time and if so, was his probation determined in advance of his employment? 4. The substantive merits of the case; and 5. What if any remedy should be granted? 232 In addition, the parties addressed the vexed issue of the credibility of the evidence provided by the witnesses, particularly in relation to the manner in which evidence was gathered on behalf of the Respondent 233 The submissions of the parties have been summarised below. Credibility of the Witnesses 234 In relation to the credit of the various witnesses, it was submitted on behalf of the Applicant that he should be accepted as a witness of credit. His demeanor and veracity had not been shaken despite spending the entire first day of the hearing under cross-examination. In addition, his recollection of events had not been challenged by any contrary contemporaneous documentation. 235 It was further submitted that Messrs Hayes and Rossi were not witnesses of credit and that their version of events ought not to be accepted insofar as they conflicted with the evidence of Mr Pritchard. 236 It was pointed out that, during cross-examination, Mr Hayes had been an "evasive and uncertain witness", and was unable to recollect dates, the relevant sequence of events, names of those who attended meetings or the substance of conversations despite the events being less than six months old. 237 Although Mr Rossi recalled in detail the timing and content of the relevant meetings on 28 and 29 September 2005, his testimony had been contradicted not only by the Applicant but also by the evidence of one of the Respondent's own witnesses, Ms Whiteread. In particular, Mr Rossi testified that he did not speak to Ms Whiteread or Mr Hayes about reducing the Applicant's salary and responsibilities prior to the 29 September 2005 `termination' meeting and that the Applicant was definitely not given the `termination' letter of 29 September 2005 during the course of the meeting that afternoon. 238 Ms Whiteread, it was submitted, should also be accepted as a witness of truth insofar as her oral testimony was concerned. In relation to her affidavit testimony, it was pointed out that wheresoever it conflicted with the evidence of the Applicant, it ought not to be accepted as her version of events had been tainted. 239 Ms Whiteread gave oral testimony confirming that she had spoken to Messrs Hayes and Rossi about reducing the Applicant's salary and responsibilities prior to the 29 September 2005 `termination' meeting. She was also quite definite that she had given the `termination' letter of 29 September 2005 to the applicant during the course of that meeting. 240 It was submitted on behalf of the Respondent that its witnesses should be accepted as witnesses of credit and that their evidence should be preferred over that of the Applicant. Any conflict in the evidence of the Respondent's witnesses was not material and was to be expected as there was more than one version of events. 241 It was pointed out that observance of the Applicant during cross-examination revealed that his responses were "rehearsed and rote" and did not accord with his body language. He had confirmed, during cross-examination, that he had misled the Respondent on a number of occasions. Examples of such concessions included: Firstly, his confirmation that he had attempted to claim reimbursement for car parking expenses which he had agreed he would not claim; Secondly, his acknowledgement that he had not made any sales and therefore should not have included the sum of $59,104 in the column headed "Actual Sales" in a document tendered in the proceedings; Thirdly, despite providing the Respondent with an undertaking on a previous occasion that he would no longer download unauthorised software on the system, and in the knowledge that to download such material would be a breach of the Respondent's Team Manual, the Respondent became aware, on 15 November 2005, that Mr Pritchard had downloaded unauthorised software for a second time. 242 On that basis, it was concluded that the Applicant should not be accepted as a witness of credit and that where there was conflict, the evidence of the respondent's witnesses should be preferred. 243 In response, it was submitted on behalf of the Applicant that reliance was being placed on his body language to support a negative finding because the Respondent was unable to attack the veracity or consistency of his answers. 244 The fact that the Applicant made frank concessions during his cross-examination attested to the honesty and integrity of his evidence and served to enhance his credit rather than attack it. The Improper Gathering of Evidence by the Respondent 245 It was submitted by the Applicant that the Commission has been frustrated in its capacity to test the independent recollection of events by the Respondent's witnesses because both Ms Whiteread and Mr. Hayes had clearly and openly disclosed the fact that they had prepared and sworn their affidavits after they read the affidavit of their employer, Mr Rossi. That fact was confirmed during their cross-examination. It was stated that it was a reprehensible practice on the part of the Respondent's Solicitors who had compiled their evidence. 246 The NSW Court of Appeal judgment in Day admonished such manner of gathering evidence. 247 The Applicant likened the practice to having two witnesses in the same room. Once witnesses from the same interests have read in detail the sworn evidence of one in their midst, it made no difference if they had their subsequent depositions taken separately. The process of obtaining the evidence of Mr Hayes and Ms Whiteread was seriously undermined as had their credibility. It was concluded, therefore that the Commission was impelled to accept the Applicant's evidence in all circumstances of substantial conflict. 248 It was submitted on behalf of the Respondent that its Solicitors took individual statements from each of its witnesses for the purpose of compiling its affidavits. 249 It was pointed out that the reliance by the Applicant on the conflicts in the evidence of the Respondent's witnesses attested to the independence of that evidence. 250 The purpose of the reference to the affidavit of Mr Rossi was convenience - it enabled the evidence to be presented before the Commission in an expeditious and timely manner. 251 During cross-examination, both of the said witnesses testified that they had not discussed their evidence with other witnesses that day. 252 Although the importance of the rules of evidence was not denied, the Commission, by virtue of the provisions of section 163(1) of the Industrial Relations Act (NSW) was not restricted from its duties by excessive formality, technicality or legal forms. 253 In conclusion, it was pointed out that the offending sections of the affidavits of the Respondent's deponents had been disallowed, thereby resolving the issue. Therefore, to disregard the evidence or give the applicant's evidence more weight because of this issue would thwart the process of justice. 254 In response, it was argued by the Applicant that expedition and convenience did not justify the process undertaken by the Respondent's Solicitors in gathering evidence. 255 It was further argued that s 163 does not amount to a waiver of acceptable standards of preparation and evidence gathering. The Applicant relied on the consideration given to its statutory predecessor by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSM v Gartrell White (No 2) 1990 35 IR 60. 256 It was concluded that, on that basis, the Respondent's evidence gathering process failed to ensure `substantial justice'. What are the substantive merits of the case 257 The Applicant contended that the substantive merits of the case compel a finding of unfairness in the dismissal and in that regard relied on the following facts. 1. The number of sales both in New South Wales and New Zealand over the 6-year period prior to the Applicant's engagement totaled about $960,000. There was no evidence that such information had been communicated to the Applicant when his targets were set. 2. Based on those figures, it meant that the Applicant had been set an annual target which was approximately $540,000 more for a single financial year or almost ten times greater that the Respondent's sales in the same markets over the previous six years. 3. The sales targets set for the Applicant were grossly excessive and unachievable. 4. The Respondent failed entirely to comply with its written "Disciplinary Actions and Termination Procedures" and gave no fair process to the applicant prior to termination; 5. The Applicant had not received any warning whatsoever that his employment was likely to be terminated. There was no documentation tendered on behalf of the Respondent which disclosed any warning that if his performance did not improve his employment would be terminated. 6. The evidence of the Applicant should be preferred over that of Mr Rossi in relation to what expectations the Respondent had of a new sales manager in a new market. The Applicant gave evidence that in response to such a question from him at the time of his employment interview, Mr Rossi had responded with words to the effect that "Nothing is expected from you in the first 3 months. We expect 1 to 2 sales in the next quarter and by the last 6 months you should be fine." 7. There was evidence before the Commission that the applicant was achieving results at the time of his termination including a tentative sale for which he had been congratulated by Mr Hayes albeit that sale did not eventuate owing to technical difficulties with software. 8. The evidence of the Applicant should be preferred over that of both Mr Rossi and Mr Hayes in relation to KPIs. There was no evidence before the Commission of the Applicant being advised of the requirement for "40 closed activities and 8 face-to-face meetings" at any time prior to the email from Mr Hayes dated 07 November 2005, one week prior to the applicant's dismissal. There was no mention of any KPIs in the extensive notes kept by Mr Rossi of the engagement meetings in June 2005. 9. The Respondent had adopted a "petty and minutely critical approach" to the Applicant's employment. That attitude carried over to the hearing itself when: the Applicant was criticised, firstly, for purchasing an internet provider for his stand alone Sydney office which, ultimately, was required by the Applicant to perform his duties; secondly, for seeking reimbursement for a parking expense incurred during his employment and labeling it as "dishonesty"; thirdly, for having downloaded a computer music programme from the web on to his lap-top computer; and finally, for having advised an employee, other than Mr. Hayes, that he was leaving to attend a doctor believing that Mr Hayes was on annual leave. Mr Hayes, having deleted the Applicant's personal files on the day of termination, left no evidence that any harm was caused to the Respondent's computer system nor evidence to refute the Applicant's contention that he had never downloaded content. 258 The Applicant's dismissal on 16 November 2005 was flawed for the following reasons: firstly, he had not been provided with an opportunity to either respond to any allegations made against him or to improve his performance; secondly, the Respondent had breached the employment contract in that the minimum requirement of one week's notice had not been provided; thirdly, he had not received any payment in lieu of notice and, finally, no reason was provided for his termination apart from the advice that it was being effected during his probationary period - in other words, during the extended probationary period. 259 The Respondent is relying on the failure of the Applicant to meet his sales targets to justify the termination. Those targets were grossly unreasonable and greatly exceeded the oral advice given to the Applicant by Mr Rossi during the engagement interviews. 260 Finally, it was submitted that the procedure adopted by the Respondent in relation to the dismissal of the Applicant had, in addition to being inadequate and unfair, failed to comply with the Respondent's own internal written procedure. The Applicant relied on the High Court judgment in Byrne & Frew v Australian Airlines wherein it was held that the use of an unfair procedure may result in a dismissal being 'harsh, unreasonable or unjust.' The Applicant also relied on the judgment of the Full Bench of this Commission in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385, wherein it was held at 389 that: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. 261 In conclusion, it was submitted that the dismissal of Mr Pritchard satisfied each element of the tautological trilogy in that it was, for the purposes of s84, harsh, unreasonable and unjust. 262 It was submitted by the Respondent that its submissions on the threshold issues ought to compel a finding a finding that there were two contracts of employment, both of which had been lawfully terminated. 263 However, in relation to the issue of the merits of the Applicants claim, it was submitted that the Applicant was counseled and warned throughout the period of employment concluding with his lawful termination. 264 The salient facts relied on by the Respondent and which were in evidence were: · the fact that the Applicant had presented himself to Mr Rossi during the interview process as a very experienced salesperson able to meet targets; · Mr Rossi has had over 30 years experience in the industry and his testimony that the annual sales target was reasonable ought to be accepted; · On commencement of employment, the Respondent had provided the Applicant with approximately 800 prospects to follow up; · The Applicant required, and was provided with, an additional five days induction training; · The Applicant had demonstrated poor time management skills; · The Applicant had been observed by Messrs Rossi and Hayes driving dangerously and without heed to the road rules. In fact, Mr Rossi counseled the applicant to slow down; · The Applicant had displayed, and had subsequently been counseled by Mr Rossi, inappropriate conduct during the sales meeting with Nestle; · The Applicant failed to meet the weekly targets (of a minimum of 8 face-to-face meetings with prospective clients and 40 closed activities per week) of which he was informed at the interview with Mr Rossi and of which he was reminded every Monday morning at the huddle and every Friday at the sales meeting with Mr Hayes. · The Applicant had received a warning from Mr Hayes during the latter's trip to Sydney between 16-18 August 2005 about: Unauthorised installation of software on the Respondent's computer system; Submitting claims for car parking expenses without receipts; Failure to achieve the minimum targets; · The Applicant was counseled by Mr Hayes in a letter dated 06 September 2005 in relation to the following issues: His failure to progress prospects in order to achieve sales; His failure to focus on and qualify his prospect list; His unprofessional conduct towards his supervisor in the presence of prospective customers and the need to obtain situational competency; His need to improve his: timekeeping so as to ensure punctuality for attendance at appointments; time management skills; observance of road rules; and compliance with the team manual in relation to reimbursement of expenses. It was noted that the Applicant had admitted, during cross-examination, that he had incorrectly claimed car parking expenses on 2 September 2005. · The Applicant had received a verbal warning from Mr Hayes, during the latter's trip to Sydney between 21-22 September 2005, about his failure to submit an itemised account with his claim for mobile phone expenses. · Even if the letter of 29 September 2005 is not accepted as a termination letter, it does serve the purpose of putting the Applicant on warning as to the Respondent's concerns, as expressed on 06 September 2005, as to the Applicant's skills, experience and abilities. · A further verbal warning was issued to the Applicant by Mr Hayes during another trip to Sydney between 11 - 14 October 2005. That warning related to: Incorrect procedure in relation to claims for car parking expenses; Failure to submit an itemised account with his claim for mobile phone expenses; and Failure to meet weekly activity targets. · The Applicant had been counseled by Mr Rossi by email dated 04 November 2005. Concern had been expressed that the Applicant was wasting his time on other matters rather than focusing on pursuit of prospects. · The Applicant had been counseled by Mr Hayes on 07 November 2005 for his failure to achieve his targets and reminded of the need to meet those targets; · The Applicant had not achieved any sales during either the first or second contract; · The Applicant admitted, nevertheless, that he had listed his actual sales as $59,104 in the affidavit he tendered in these proceedings when the actual figure was zero dollars.I · Immediately prior to his second termination on 15 November 2005, the Respondent discovered that the Applicant had, once again, downloaded unauthorised software onto his computer. The Applicant was aware that the Respondent's Team Manual lists such an offence as grounds for dismissal. 265 It was concluded, on behalf of the Respondent, that even if the Applicant's employment is deemed to have been continuous, the above litany of poor performance, warnings and counseling evident throughout his period of employment with the Respondent, are sufficient to ground a finding of lawful termination by the Respondent. 266 In reply, it was submitted by the Applicant that the "litany of poor performance" relied on by the Respondent was one further example of its petty and minutely critical approach to the applicant's employment. 267 It was pointed out that the Respondent had failed to address the primary submission of the Applicant that its procedures were inadequate and unfair, and failed to meet even its own internal written procedure. 268 It was emphasised that the Applicant was not alleging that the termination in November 2005 was "unlawful". Rather, he was alleging that the termination was harsh, unreasonable or unjust. It was submitted that as the Respondent's submissions are silent in relation to that test, the Applicant's submissions ought be accepted. What if any remedy should be granted? 269 Both parties acknowledged that reinstatement or re-employment would not be practicable. 270 The Application was seeking compensation for the situation he found himself in upon his dismissal. He was in Australian on a working visa obtained by the Respondent. That visa was terminated by the Respondent and the Applicant had found himself not only in the position of having to find alternative employment at a difficult time of the year (16 November 2005), but having to find an Employer who would be willing to sponsor his work visa. 271 The Applicant did not find alternative employment until 03 March 2006 and commenced employment on 20 March 2006. The applicant spent one of those four months in the UK visiting his family. 272 It was pointed out that, in addition, the fact that the Applicant was in sales meant that a significant element of his remuneration was subsidised by commissions, the level of which depended on the degree of product knowledge and market contacts possessed by him in his new employment. That inevitably leads to a substantial period during both his employment with the Respondent and his new employment when he is achieving far less commission payments. 273 In conclusion, it was submitted that, in exercising its discretion pursuant to s89(5) and (6) of the Act, the Commission would find that, taking into account the applicant's immigration status, the date of his dismissal, the inevitable loss of commission, the period of service, his attempts at finding alternative employment, the conduct of the respondent and the harshness of the dismissal, an amount of compensation equivalent to three and a half months wages calculated on the basis of $6,666.67 per week (total $23,333.00) would be justified. 274 It was submitted by the Respondent that there were two separate and distinct contracts of employment with the Applicant, both of which were lawfully terminated. If the Commission finds in favour of the Respondent in relation to that argument, then the Applicant has no remedy. 275 If the Commission finds against the Respondent and accepts the Applicant's submission that it was one continuous contract, the Applicant was terminated lawfully and has no remedy given the litany of counseling and warnings he had received throughout his period of employment. 276 Even if the Commission finds that in addition to their being one continuous contract and the Respondent did not sufficiently warn the Applicant, there is sufficient evidence to indicate that it would only be a matter of time before the Respondent could have lawfully terminated the Applicant's employment given the performance history described earlier. 277 It was suggested that the Respondent could have issued two warnings, each of which would have provided two weeks for compliance in relation to the issues raised. Failure to comply would result in notice to terminate the contract. If the Respondent has to terminate the contract for non-compliance then appropriate notice would be issued. The effect of all of that would be to limit the Applicant's claim to compensation to 2 months' pay. 278 That limitation on the Applicant's claim suggested above as well as the Applicant's claim for compensation should, in any event, be reduced by one month as he had admitted to taking one month's holiday overseas since termination during which he would not have been actively seeking employment in Australia. 279 In conclusion, it was submitted that, at best, the applicant's claim for compensation is limited to one month's pay at the rate of $6,666.67 per month, one week of which has already been paid. Consideration 280 Mr Pritchard commenced employment with the Respondent firm having already had 16 years' sales experience under his belt - 8 years of which were in the field of software sales. 281 The Applicant stated that he had emailed Mr Rossi a document consisting of 174 questions and comments after the first interview. Mr Rossi recalled that it was handed to him at the commencement of the second interview when they were negotiating the annual salary payable. Mr Patterson had been in attendance. Both parties were agreed that they had gone through the entire document which included supporting information by the Applicant as follows: 107. Successful and experienced in Market Penetration, Core Branding initiatives. 109. The ability to out think, out perform and out earn my competition... b. I will endorse and commit to my above ability to remove or prevent YOUR competition from winning business into the Hot Market Penetration Prospect List 151. My ramp-up time will be considerably shorter as I possess the knowledge and experience of your business space (ERP, SCM, SRM, Importation & Distribution Channels and Enterprise Information Portals/EIP's) products, solutions and related services. 152. Therefore I believe I will be instantly empowered to assist and help your organisation rapidly achieve a large pipeline and its realisation of its sales and strategic targets. 153. I enjoy, and have been successful, penetrating new business markets. 165. I have over 1,000 Business Leads within your space and have good contacts with many of the opportunities as I was involved in cold- calling each and everyone of them. 282 The Applicant obtained a copy of the job advertisement from the Agency. The detailed advertisement included the following statements: "The NSW BDM will achieves sales quota through the acquisition of new business development with a relationship focus.....A number of existing prospects are ready to be followed up and a targeted database of others is ready for further qualification.... You will have a fundamental understanding of solution sales and a minimum of 4 years proven success selling ERP or similar software solutions into enterprise and corporate markets. Qualified candidates must offer a strong and consistent record of attaining and/or exceeding quota...". 283 In view of the above, it is very hard to believe the contention that Mr Pritchard had been advised at the interview that the Respondent did not expect any sales in the first quarter and one or two during the second quarter, particularly at a salary of $100,000 per annum. 284 The following questions are noted on the Applicant's questionnaire: 7. Pease elaborate on what is expected of me after 3, 6 and 12 months? 36 . What product Sales constitute my target and revenue? That questionnaire appears to have formed the basis of discussions at the second interview. Whilst I am critical of the fact that the requirements of the Applicant were not spelt out to him in writing from the commencement of his contract, I accept the evidence of Mr Rossi that those matters were discussed at the Interview and the evidence of Mr Hayes that his performance had been reviewed with the Applicant on a weekly basis. 285 Even if the Commission were to accept that the Applicant had not been advised of what targets he was expected to meet, that matter should have been the focus of discussion at the meeting on 29 September 2005 during which the Applicant stated he had been handed the termination letter setting out three reasons for his termination, which included: 1. Concerns about your skills and experience, in particular due to our expectations as a result of interviews prior to engagement; 2. Demonstrated behaviours over the last three months resulting in concerns about your abilities as a Business Development resource, please also refer to our letter dated 6 September, 2005; ..... 286 One would have thought that the Applicant would have insisted on discussing what targets were expected of him during the second period of employment when the contract terms were being negotiated. 287 The number of sales in New South Wales prior to the engagement of the Applicant is noted. It is also noted, however, that the reason the Respondent decided to re-open and man an office in Sydney was the fact that prospects had built up over time. 288 I accept that the targets set for the Applicant may have been excessive and unachievable, however, it beggars belief that the Applicant was unable to achieve any sales in six months of employment given the prospects that were already available to him (100 of which were able to be converted to a sale within a 12-month period) and given the supporting information he provided in question 165: "I have over 1,000 Business Leads within your space and have good contacts with many of the opportunities as I was involved in cold-calling each and every one of them". 289 I am satisfied that the Applicant, in spite of his experience and skills, was provided with training and further training (at the request of Mr Rossi) at commencement of his engagement. In addition, the evidence indicates that offers of support were made to the Applicant on a number of occasions. 290 It is not correct to state that the Applicant was not on notice that his employment was not faring well. In addition to the Friday afternoon discussions with Mr Hayes as to his personal performance: v On 06 September 2005, Mr Hayes wrote to the Applicant setting out quite a number of positive comments about the Applicant, providing hints, offering assistance and then listing matters of some concern - punctuality in regards to appointments; Time Management (and an offer of enrolling the Applicant in a course); Car Travel and the legal issues associated with breaking road rules; and the Team Manual, particularly in relation to re-imbursement of expenses. v On 29 September 2005, he was provided with reasons at his first termination; v The mere fact that a probationary period applied to his second contract, whether legally binding or otherwise, is another reminder that the Respondent was not comfortable with his performance; v On 04 November 2005, Mr Rossi pointed out in an email to the Applicant that he was wasting time in the office when he should be in front of prospects; v Also on 04 November 2005, Mr Rossi pointed out in an email to the Applicant that he was wasting time on matters outside his scope of responsibility when he had 191 prospects not yet rates. He was asked to focus on prospects in Efficiency and get some sales under his belt first; v On 07 November 2005, Mr Hayes emailed the Applicant praising him on progressing an opportunity. He went on to point out that a review of the Applicant's activities in Efficiency showed a sharp decline in the number of weekly activities undertaken - 36 in week commencing 10 October; 49 in week commencing 17 October, 9 activities in week commencing 24 October; and 7 activities in week commencing 04 November. That email went on to outline his KPIs and advise him to close the two sales in his pipeline by 25 November. Once again he was advised to use his time effectively. v On 09 November 2005, Mr Rossi had to remind the Applicant that his focus should be on New South Wales, New Zealand was not part of his territory and that he was not to initiate or respond to any enquiries in that regard. v On 14 November 2005, Ms Whiteread emailed the Applicant and advised that the Respondent was unable to advance his commission payment for a number of reasons including - lack of capital sales being made and the fact that he was $160K under target which had not been originally expected. She added, "I am sure that if you were to make a couple of significant sales an arrangement could be made, but at this time we are not able to advance any further amounts." 291 The Applicant denied on a number of occasions that he had driven quickly or recklessly or had been instructed to slow down. One such occasion was 24 August 2005. It is noted that the responses given by the Applicant during cross-examination conflicted with his affidavit evidence in reply, wherein he admitted that he had driven quickly, albeit not recklessly, and that he had been told by Mr Rossi, once only, to slow down. 292 The Applicant admitted that he had read in the team manual that downloading of unauthorised data from the Internet without approval would be considered as serious misconduct. Yet he had downloaded KAZAA, a music program on to the server, which he owned up to when it was brought up at the huddle meeting on 15 August 2005. It was discovered by the company's IT staff as it was causing problems on the system in Adelaide. In an email to Ms Whiteread on 22 August the Applicant stated that he had worked back until midnight for three nights and "I needed stimulation and motivation so sought music,...I am a human being and need stimulation and motivation...". Despite the contents of that email, the Applicant gave evidence that in the proceedings that he had not downloaded any music files. 293 Mr Pritchard agreed that in addition to the warning in the manual, Ms Whiteread had reminded all employees that such downloads were illegal software. He initially denied that he had received a similar caution from Mr Hayes but later admitted that Mr Hayes raised with him, on 16 August 2005, the fact that he had entered into a contract with Unwired without obtaining prior authorisation to do so. The Commission is aware that it subsequently proved to be an advantageous move on behalf of the company but that is not the issue. The Applicant was aware that he had to obtain prior authorisation for such matters and chose to ignore that policy. In fact, when the Applicant was dismissed, it was discovered that he had downloaded Lime Wire, another program for downloading music. The Applicant had downloaded it on to the C drive of his laptop computer to avoid detection. The effect of that program was to slow down the speed of his connection. Decision 294 Mr Patterson stated, in his affidavit, that on or about 09 November 2005, he received a call from the Applicant who sought advice as to whether the Respondent had paid the agency fee associated with his engagement and whether Mr Patterson would assist him in gaining alternative employment as it was not working out with the Respondent. Had the Applicant found alternative employment, he would have had to provide the Respondent with notice. In view of the agreement entered into on 30 September 2005, the Applicant would have been justified in providing only one week's notice of termination as he was terminating during what the Respondent considered to be a probationary period. 295 The Applicant was dismissed on 16 November 2005. In view of the fact that a finding has been made that the employment was continuous, the Applicant would be entitled to four weeks' notice. 296 In relation to the dismissal of the Applicant on 16 November 2006, I have arrived at the conclusion that the cessation of the working relationship was inevitable. The Applicant was not performing according to the expectations he had raised at the interviews. It would be unreasonable to expect the Respondent to continue funding a New South Wales office and a full-time Business Development Manager in the absence of any glimmer of hope that sales would commence to occur. In addition, the Applicant appeared to ignore directions issued by the South Australian management in relation to punctuality and safe driving, focus on targets, observance of the terms of the Manual and obviously Sales. 297 In light of the evidence before the Commission, the Applicant's dismissal was neither harsh, unjust nor unreasonable. For that reason, the Commission declines to interfere with the Respondent's decision to terminate the Applicant and dismisses the application for relief filed by the Applicant. 298 Matter No. IRC 6269 of 2005 is hereby dismissed. I. Tabbaa COMMISSIONER 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.