Let us just worry about the proper operation of the terms of the contract that he signed with his eyes open and we say it misses the point entirely.
61 I have to say that the evidence of the applicant, viewed overall and which I accept, properly enables the inferences as referred to by Mr Kimber concerning the terms of the contract of employment as it was made and operated in practice to be reasonably open. The failure by the respondent, either by itself or by Mr Benn as its agent, to inform the applicant of the terms and conditions of the Executive Incentive Scheme insofar as the 5-year qualifying period for the vesting of the share options was concerned was a serious omission; it was one which, having in mind the redundancy occurring after 3 years' service, should not be visited against the interests of the applicant without adequate compensation. The same conclusion may be reached in relation to the lack of specificity concerning the entitlement to bonus, particularly having in mind the achievement by the applicant of the performance objectives as agreed with Mr Hoog Antink. Another significant omission, in my view, in the terms of the original contract was the express failure to deal with termination conditions in a situation of redundancy and where such conditions were not the subject of any discussion between the parties beforehand but rather were set out in the offer letter of 5 May 1995 as the respondent's first and final offer to the applicant. I am satisfied that those matters both separately and collectively constituted relevant unfairness in the contract of employment and in the Executive Incentive Scheme (and thus the deed poll) so as to offend the provisions of s 106 of the Industrial Relations Act as being unfair, harsh and unconscionable.
62 Specifically as to the way in which the contract worked out in practice, I consider that the removal of Mr Hoog Antink from active participation in the Wholesale Trusts Division a bare 6 months after it commenced was potentially against the interests of the applicant in that it provided a very real risk that the wholesale trust initiative would be under-resourced notwithstanding the satisfactory input by the applicant. That Mr Hoog Antink was directed to the Westfield America Trust, separate and distinct from the Wholesale Trusts Division, would likely prejudice the success of the wholesale trusts initiative and, hence, the career interests of the applicant; nothing to that extent was indicated to the applicant before he commenced employment with the respondent as being contemplated or even possible. I would conclude that the consequences of such action, whilst it may be undoubted that the respondent had a right to do what it did, should not sound against the interests of the applicant. He should receive appropriate compensation for what occurred by the early termination of his employment because of redundancy.
63 Mr P M Kite SC and Mr P J Newall of counsel appeared for the respondent and advanced submissions against the relief sought by the applicant. On the basic proposition that the applicant was "a well-experienced, highly-qualified, senior executive", senior counsel observed on the evidence that he was "a person confident in his own abilities, not only to perform but to negotiate his terms of employment" and who "knows his worth in the market place". Senior counsel emphasised that the applicant in accepting employment with the respondent was well aware of the risks involved in the respondent venturing into the new area of wholesale trusts and yet he did not seek to negotiate terms for termination of employment but rather accepted those offered by the respondent. In a real sense, so senior counsel submitted, the applicant by agreeing to the terms offered, including as to bonus and the share options, could not be heard to claim otherwise. The fact the applicant obtained employment at a remuneration rate of $300,000 per annum a mere two months after being made redundant, and still enjoyed that employment, and even though he did not have the benefit of share options, demonstrated that he was readily able to achieve suitable employment so as to minimise the effects of the redundancy in August 1998.
64 As to the claim for the payment of 12 months' remuneration on termination of employment, Mr Kite submitted that the one month's notice given plus the payment of 3 months' remuneration was reasonable in the context in which the terms of employment were negotiated and, in any event, the circumstances were not such as made the contract unfair in its operation, particularly having regard to the employment obtained by the applicant about one month after leaving the respondent's employ. Also, it was important to bear in mind that the applicant's immediate claim, initially on a "without prejudice" basis, on having been made redundant was for a payment of 6 months' remuneration and not the present claim of 12 months.
65 As to the claim concerning bonus, Mr Kite emphasised that it was "a performance bonus type scheme because it is measured by superior performance, to be based upon divisional results, depending on how well the division does and how the performance of the particular employee is said to contribute to that. Not just doing his job but superior performance". The difficulty with that proposition, as I have intimated earlier, is that the applicant achieved all of his performance objectives and the extent to which the Wholesale Trusts Division did not make a profit was not due to factors within the applicant's control; in fact, the secondment of Mr Hoog Antink to the Westfield America Trust during the early, and no doubt critical, period of the introduction of the wholesale trusts initiative was likely to have affected the divisional performance. In referring to the bonus which was paid to the applicant, being $75,000 in respect of one of the 3 years of his employment, Mr Kite submitted :
In this case the wholesale trust did not succeed and then moved on to another project, CFM, which was anticipated to be one that would produce good revenues to the company. That did not eventuate but it is recognised that Mr Adams had contributed well to that deal and he was recommended a bonus for his contribution in respect of this deal. He produced revenue to the company as profit. The only money coming in at the first stage was the 160 thousand which did not meet Mr Adams salary, let alone the other costs. It was understood at that stage that it was a good deal. The fact it wasn't bringing money in at that stage did not detract from the fact that he was performing well in getting the deal. A bonus was recommended. The company proposed $50,000. Mr Adams disagreed and talked it over with Mr Lowy. They agreed on 75,000.
66 In terms of the claim as to the share options, Mr Kite relied upon the evidence of Mr Hilmer and Mr Gonski as demonstrating the exercise of a discretion in a fair way to permit the applicant to exercise on his redundancy 30% of the options issued to him. Mr Kite was at pains to distinguish a situation of redundancy from that where an executive died or was permanently disabled in that in the former situation the person was able to work, including for a competitor. As senior counsel said, "In one sense it would be incongruous to have someone enjoying the team effort while out there diligently working for a competitor". Of course, in the present case, it has to be said that this is not the situation with the applicant.
67 In supporting the discretionary decision made by Mr Hilmer and Mr Gonski, Mr Kite dealt with the nature and qualities of redundancies and submitted :
Now, there is no doubt that the decision to terminate at the end of the day was the employers. We don't cavil with that here. This is a decision to terminate by Westfield but Mr Adams in a relevant respect had his future employment in his hands in that he was charged with developing a capital raising concept. Had he been successful in that, his employment would have continued. That's not to ascribe blame. It is to indicate that redundancies have about them a spectrum of circumstances and one should not fall into the difficulty of simply saying: Well all redundancies are the same and should be treated in the same way just as Mr Hilmer and Mr Gonski were at pains to say. Even with termination they wouldn't say for ever and a day you would never exercise any discretion in favour of a particular employee.