Burks v Zanmarl Pty Limited

APPLICANT Mr P Coleman of counsel SOLICITORS Mr C Hughes LEGAL REPRESENTATIVES: Bondfield Riley

RESPONDENTS Mr R B Winn (Respondent in person)

JUDGMENT:

• 34 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: GLYNN J

VICTOR LEE BURKS v ZANMARL PTY LIMITED TRADING AS WELCOME MART SUPERMARKET & ANOR Application under section 106 of the Industrial Relations Act 1996

1 Victor Lee Burks (the applicant) applies, pursuant to s 106 of the Industrial Relations Act 1996 (the 1996 Act) for orders against Zanmarl Pty Ltd trading as Welcome Mart Supermarket (Zanmarl/the first respondent) and Russell Brian Winn (the second respondent), referred to collectively in this judgment as "the respondents". The terms of the orders claimed are: 1. An order declaring void in whole, from the beginning or from some later time, the contract of employment and arrangements, related conditions and collateral arrangements, (the "contract"), whereby the applicant performed work for the respondents save for money paid to the applicant pursuant to the contract and arrangements.

In the alternative, an order varying the contract and arrangements between the applicant and the respondents to insert the following provisions: (a) Upon termination of employment the applicant is entitled to receive 12 months notice. (b) Upon termination of employment on account of redundancy or for reasons other than the work performance or conduct of the applicant, the applicant is entitled to a severance payment, in addition to notice. (c) The employment of the applicant will not be terminated without proper reason or in circumstances which are harsh, unjust or unreasonable. (d) Should the respondents make a decision to restructure, make the position held by the applicant redundant, or not continue the employment for other than wrongdoing by the applicant, the respondents shall consult with the applicant and discuss alternative positions, work or employment arrangements. (e) Upon termination of employment within one year of commencement the respondents will forthwith consult with the applicant with respect to his expenses in moving to Bourke to take up employment, to establish residence in Bourke and to move away from Bourke and pay to the applicant his reasonable expenses.

An order that the respondents, jointly and severally, pay to the applicant such amount of money in connection with the contract so varied or avoided as may appear just in the circumstances. 2 Particulars of the manner in which any amount claimed is calculated are: 1. Payment of salary in lieu of 12 months notice of termination: $50,000; 2. Payment of expenses to attend job interview in Dubbo in late May 1997: $298.00

3. The cost of relocating from Lismore to Bourke and establishing residence in Bourke: $1,500.00.

The cost of relocating from Bourke to Lismore: $3,995.00 less $550.00 paid on 7 July 1997 - balance $3,445.00.

The cost of and incidental to storing furniture/furnishings: $671.00.

The cost of maintaining and visiting, (on one occasion), the applicant's family in Papua New Guinea whilst looking for alternate [sic] employment following the applicant's dismissal, (from 6 July 1997 to 9 November 1997): $8,610.00. 3 Zanmarl had taken over the operation of the Welcome Mart Supermarket on Tuesday, 1 July 1997. The applicant commenced work on that date. He had a day off on Saturday. His services were terminated on Sunday, 6 July 1997. 4 In September 1997, the applicant made an application to the Commission in respect of a claim of unfair dismissal. That application was discontinued. His application for relief under s 106 was filed on 28 January 1999. 5 In these proceedings the applicant was represented by Mr P Coleman of counsel. 6 The applicant gave evidence on his own behalf. 7 The second respondent, Mr Winn, currently a director of the first respondent appeared in person representing himself and also appeared on behalf of the first respondent. The second respondent said that the Court lacked jurisdiction to make orders against him, in that he is an employee of the first respondent and was at no time the employer of the applicant. He asked that the Court not proceed with the application in so far as it related to himself. He gave evidence orally, and also in affidavit form supplemented by a later handwritten combination of statement/submissions. 8 Two other witnesses were called by the respondents: Stanley Bertram Charles Douglas, company director, taxi driver and truck owner, formerly co-owner with his wife, of the Welcome Mart Supermarket and Dougo's Drive-In Liquor Store in Bourke.

Ian James Stinton, manager of the Welcome Mart Bottle Shop from November 1998 until the end of June 2000. 9 The Commission sat in Wellington to hear their evidence, the second respondent having indicated earlier that some six witnesses living in Bourke would be giving evidence. 10 Mr Coleman advised the Court that no Browne v Dunn ([1894] 6 R (HL) 67) point would be taken by him in relation to matters raised in the affidavits, though that would not be the approach adopted in relation to any new material. Submissions - Applicant 11 The case concerns a contract of employment. The applicant's case is that that contract was unfair, harsh and unconscionable against the public interest. This case has a number of unusual features, particularly the fact the period of employment only lasted for four working days. The factual position that emerges from the affidavit evidence is that the applicant was engaged on AusAid work in Papua New Guinea. That position came to a conclusion at the end of the project and he returned in March 1997 to Australia to where he had contacts to look for further work. His family stayed in Papua New Guinea while he undertook the challenge of finding a job. 12 At about the same time the applicant was interviewed by the second respondent, was offered and accepted the job, in June 1997, he had available to him an offer of work for a prospective employer in the Northern Territory. He declined that position to accept the job that was offered by the respondent. 13 The contract of employment that is complained about is to the extent that it is in writing and it is in a letter from the second respondent addressed to the applicant. The letter sets out the salary of $50,000 per annum. It is not a full contract, because the next paragraph says a complete job description will be further discussed after the employment commences. In the last paragraph the hours of work and days on which the employment was to occur are yet to be agreed. 14 That contract does set out a three months trial period and termination within that period at least on two weeks notice. Both contractual terms are unfair in the circumstances of this case, but particularly the two weeks notice period. 15 The second respondent's advice that he had secured a house for the applicant demonstrates an expectation on the part of Mr Winn at the time he made this offer that employment would be permanent and ongoing, not subject to termination on two weeks' notice. The applicant paid four weeks rent as a bond and paid several weeks rent in advance. He then moved all his possessions he had in Australia to Bourke. He commenced to make arrangements for his family to travel to Bourke to be with him there. 16 The applicant worked Tuesday to Friday and that is four working days. In that four days period he confined himself to work that was not directly management of the business, preparing for a stocktake for the sale of the business, valuation of stock, et cetera, meeting customers and making himself known to other businesses in town. He then had Saturday off by arrangement with his employer. Because of the anticipation of his family moving from Papua New Guinea he purchased furniture and Saturday was spent receiving delivery of that furniture and setting up house. 17 There was no hint to Mr Burks at any stage until Sunday morning that his job was not secure and he was dismissed that morning. On the Sunday morning he turned up for work at opening time and he was called into Mr Winn's office and there is a divergence in the evidence here. The applicant's evidence is clearly that he was just simply told he had been dismissed. Words were said in the nature of or to the effect that, "You are being overpaid and you are no longer needed". In fact it emerged as evidence that another manager was employed some weeks later, a local person. That person was employed to manage the shop at a substantially lower rate of pay than the $50,000 per annum that had been agreed between the parties in this case. 18 In these proceedings Mr Winn relies, to justify his decision to terminate Mr Burks, on unsatisfactory work. No specifics were put to Mr Burks either during the four days that he worked there, at the time he was dismissed on the Sunday or later when Mr Burks asked for reasons to be put in writing. Even when Mr Burks was in the witness box still no specifics were put to him as to the unsatisfactory work performance alleged in the respondent's case. 19 It is just not possible, particularly in the circumstances of this case, for anyone to make an assessment of Mr Burks' work performance as a manager within a four-day working period. No manager can be judged in four working days but it is even more ridiculous in this case in view of the specific features of it. 20 Firstly, Mr Winn, who is the only decision maker, himself was new to the business. Secondly, Mr Burks was engaged to manage with an emphasis on improving the business, yet he was not permitted to commence making those management changes. He had a specific instruction not to do until the previous owners left after the two-week hand over period. So that left the position of the supermarket effectively managed by the Douglases. They worked there full-time in the four days Mr Burks worked there. Mr Winn's concerns regarding the management of the supermarket business, if those concerns were genuine, were more specifically reflective of the work of the Douglases rather than Mr Burks himself. 21 That leaves the question as to why the dismissal did occur. After the dismissal Mr Burks was replaced as manager several weeks later by Ms Boch who was paid much less than Mr Burks. 22 Mr Winn gave evidence to the effect that Ms Boch's hours were different to those of Mr Burks and some of the duties were different. If that is so, that leads to the ultimate conclusion that, in substance, the termination in this case was in the nature of a redundancy. The manager's position was restructured, a lower rate of pay was set with some adjustment possible to the hours of work and the duties, and that restructuring position is really, in a sense, confirmed by the later employment of Mr Stinton. 23 Those facts suggest that once Mr Winn took over he decided he did not want a manager at $50,000 per annum. He discovered he could have a job done at a lower rate of pay and went about restructuring in that way. 24 But whatever the real reason for the dismissal was, the amount of notice in the contract, the lack of any notice at all given or paid out, in all the circumstances of this case, demonstrate a manifest unfairness. The two-week notice period in the contract itself was not even given or paid out. 25 The applicant relied in particular on s 105 (a) in that a contract can be unfair, harsh or unconscionable in its terms and/or in its operation. In this case the applicant relies on both aspects. The contract both in its terms in relation to the notice period and in its operation period, was unfair, harsh and unconscionable. 26 Mr Coleman turned to suggest what would constitute an appropriate fair provision. The period of employment was short, something less than a week. That would usually in many cases tend to indicate a shorter notice period was appropriate. But in this case Mr Burks gave up other work opportunities to take this job. It involved him moving to Bourke, some considerable distance, and incurring considerable costs in doing that. The termination after only four days work meant for him another four months of unemployment until he took the job he got in Oodnadatta. 27 What adds to the unfairness of the very short notice period is the fact he had to go through the expense of transporting himself and his possessions a long distance to Bourke from Lismore and after the termination from Bourke to Oodnadatta. 28 The other principal aspect of unfairness in this case is the absence of any term in relation to reimbursement of these expenses of moving to Bourke and then away. The absence of that type of term would diminish in unfairness as time progressed if the job had lasted for instance for five years. But in circumstances where the employment was terminated on no notice after four or five days, the absence of that term in the contract is manifestly unfair. 29 The expenses supported by receipts or supported by oral evidence amounted to $8601.20. In circumstances where the employment lasted less than a week the unfairness is appropriately remedied in that respect by an order for that amount. 30 In the summons the applicant seeks rectification of the unfairness of the conduct of the respondents by a payment of 12 months salary in lieu of notice. The applicant does not retreat from that claim but does point out the actual period of unemployment was four months. That is also reflective of the period that it took him the first time around to obtain work. 31 The evidence of Mr Winn suggests that the termination was a result of a redundancy in unique circumstances but nevertheless a redundancy. The various test cases in relation to redundancy/severance pay provide for no entitlement to redundancy severance pay to a person with less than 12 months service. However, the levels of redundancy/severance pay in test cases are very much expressed to be minimums and when looking at rectification of the unfairness, it would be appropriate for the Commission to consider a component in the nature of a redundancy/severance pay payment in circumstances where the termination is, in substance, a redundancy. 32 Mr Winn has made it clear in the documents in preparation for this matter, his affidavit and also his written submissions, that he would be asking the Commission not to make any orders against him as the second respondent. 33 The reasons it is appropriate to make orders against the second respondent as well are that firstly, the job advertisement seeking a manager was placed by Mr Winn; he was the person of contact; it was Mr Winn who conducted the interview; it was he who made the decision to offer employment to Mr Burks; and he employed the applicant. The formal offer of employment on the letterhead of the Welcome Mart supermarket was signed by Russell Winn in his capacity as an individual. There was no mention of Zanmarl Pty Limited. The first the applicant knew there was a company involved was after he started. The termination cheque that came after five days of employment was a cheque written by Zanmarl Pty Limited. 34 The ASIC historical company search of Zanmarl Pty Limited of June 1999 supported the applicant's submission. Traced back the ultimate ownership of the first respondent is with the Winn family. 35 There was also the evidence from Mr Winn the company has a fixed and floating charge, an amount of $105,000 and asked in cross-examination as to whether Zanmarl could meet any substantial payment such as $50,000, his answer was "No, it could not be met." 36 Section 106(5) provides the power of the Commission to order the payment of money. The only statutory requirement is that, firstly, the Commission sees it just in the circumstances of the case; and secondly, it is an order in connection with the contract declared void or varied. The Commission has power to make orders against non-parties to the contract (see Brown v Rezitis (1970) 127 CLR 157). The Commission has the power to go behind the company and make orders against its managers and shareholders, and the Commission should do so in this case. 37 There is clearly the necessary connection between the contract of employment and surrounding arrangements and the second respondent. It would be appropriate in this case to make orders in the nature of relief against the company's director and manager, Mr Winn. The applicant sought that any such orders to be made against both respondents jointly and severally. 38 As stated as an agreed fact, he was paid one week's net salary plus $550, said to be a contribution to his moving expenses. The applicant then actively looked for other employment and obtained other employment commencing in November 1997. There was a period of unemployment of just over four months. 39 The essence of the applicant's case is that in the circumstances Mr Burks firstly turned down employment that was available to him in June 1997. Secondly, he incurred considerable expense in relocating from Lismore and in making plans to bring his family to live in Bourke and then was dismissed after effectively four days of employment for no fault of his own, that the contractual provision that provides him with an entitlement to two weeks' notice is unfair, harsh and unconscionable in not providing adequate notice of these circumstances and in not reimbursing him the expenses of relocating to Bourke and moving away from Bourke to obtain other employment. The amount of notice that is claimed in the summons would be a fair amount of twelve months. The reimbursement of his expenses are sought as set out in the summons. Submissions - Respondent 40 The supermarket sells a wide variety of grocery lines, fruit and vegetables and includes a busy liquor store. It is one of only two supermarkets in the town of Bourke. As indicated by the salary offered to the applicant, the manager of the supermarket must have extensive skills in supermarket management. 41 The contract should be avoided ab initio, the reason being Mr Burks misrepresented himself to Mr Winn at his interview, in his written resume and in his letter of introduction and he had made statements as to certain matters which were not correct. Based on those misrepresentations and misstatements, there had been a unilateral mistake made by Mr Winn regarding them. Basically Mr Burks failed to disclose a true account of his work history. In doing so he misrepresented himself as a prospective employee and his experience and length of experience in supermarket business. 42 Mr Burks was an unreliable witness in that he admitted not including a factual account of his previous work history. 43 The applicant indicated that he had four different resumes which he would call upon depending on which position or what qualifications he needed to have. Based on that the contract was never a valid contract from the start. Basically the applicant was saying that because Mr Burks adjusted his resumes to suit the job on offer, the respondents felt they were quite within their rights to dismiss him on that particular point. 44 The second respondent said that the applicant lead him to believe that he had many years experience operating in a supermarket environment and that he was experienced in all facets of supermarket operation. The applicant's previous experience was crucial to his appointment. In practice, the applicant was totally unsatisfactory as a manager of a supermarket. He appeared to have no experience whatsoever in the day to day operations of a supermarket. He appeared to have no familiarity at all with the operations of cash registers and inventory control systems. The applicant's ability to order from suppliers was inadequate. This was evident from the second respondent's own observations and those of the other staff employed by the first respondent. 45 Mr Burks has shown some of the deficiencies he has in the position he was employed at as he could not, when giving evidence, calculate the gross profit of a simple kilo of bananas which was an integral part of the management process in running a business and the concept of gross profit as opposed to mark up percentages did not appear to be understood by him. His answer was not correct and he did not appear to grasp the concepts of it. 46 The applicant's inexperience and inability to perform the work required was brought to his attention before the employment ended. The applicant appeared to understand and agree with his shortcomings as a supermarket manager. At the time, the applicant agreed to the termination of employment. 47 The contract was not unfair, harsh or unconscionable and against the public interest as Mr Burks was given a proper reason for his dismissal. Mr Burks was not in an inferior bargaining position at the time as it would often take some time to fill a vacancy in a managerial position at Bourke. A condition that he later accepted with the Dunjiba Community Council also stated the three months probationary period. 48 Mr Burks was terminated based on his performance and it was directly relating to his conduct. It was not due to any restructuring, it was just the fact that he could not do the job. Mr Burks was instructed and consulted on several occasions prior to him being dismissed about his work performance and things in general, as regarding the fridges that were not stacked and the procedural things like the tills that did not have the right amounts of money in them and were not being looked after. 49 The provision for a three months probation period is a standard practice in the commercial world. Mr Burks was well aware of this condition prior to him accepting the offer. The period of two weeks notice was also known in advance and is within the accepted boundaries for a termination notice as evidenced in the Metal Industries Award of 1984 which provides a sliding scale based on the length of continuous service and the age of the employee. Based on the criteria in that Award Mr Burks would be entitled to one week's notice. It is not unreasonable that termination payments other than those given were not paid in view of the short number of days worked. 50 There has been no evidence that the applicant declined another offer of employment which was available at the time and ceased to pursue other opportunities. 51 The respondents were never aware of or required Mr Burks to sign a 12 months lease. That would have been less than prudent for Mr Burks as he was still under a three months probationary period. 52 It was not unreasonable that travelling expenses were not paid to the applicant. The salary offered to the applicant was quite high in the circumstances. Mr Burks knew his expenses to relocate from Bourke were at his own cost. 53 Mr Burks stated in oral evidence he had very little in the way of furniture in the house he was boarding at. He did not have to make many arrangements for his relocation to Bourke and that he was ready to move on short notice. 54 Mr Burks was driven to Bourke and inspected the premises thoroughly and knew what was expected of him. He was aware of what type of business it was. He was shown around the business. He had plenty of time to see if he could do the particular job. He was shown what was entailed in the day-to-day running of the business and he said he would be able to perform those tasks and also he would be able to perform the job if he accepted the offer of employment. 55 In relation to Mr Winn being joined as the second respondent, there was no evidence to corroborate the newspaper article and no witness was brought forward. There was no evidence to suggest he was the beneficiary of the Winn Family Trust. There was no evidence to suggest at the time that he was a director of that company. In fact, the information suggests he was not a director of the company and he was merely acting in his capacity as manager for that company. 56 The supermarket is located in an isolated town and supports a diverse community. The first respondent could not afford to pay the amount claimed. The business will have difficulty meeting the legal costs of defending the claims as it is. That was why the second respondent was appearing in person to represent both respondents. 57 The claim against the first respondent should be dismissed with costs. Submissions - Applicant - In Reply 58 Firstly, to the suggestion the job application and associated resume contains misrepresentations, Mr Burks was extensively cross-examined on those documents. The end result of all the material, the documents, his affidavits and his cross-examination on that evidence leads clearly to the conclusion there was no dishonesty, nothing misleading and no misrepresentation. Certainly he said he has four different versions of his resume and he uses the appropriate one but there is nothing of a substantial nature inconsistent between the two resumes in evidence. He normally did not include his earlier work history because most employers are not too interested in going too far back. He did in this case because it was relevant to the job he was applying for. 59 In more general terms the assertions of Mr Winn that Mr Burks was not a truthful witness are not made out in the evidence. He was an honest and truthful witness just as he was honest and truthful in dealing with the respondents. 60 There are a number of assertions made by Mr Winn in evidence that Mr Burks' evidence lacks corroboration. Mr Burks gave a considerable amount of evidence in his affidavits, much of that evidence was not challenged and did not require corroboration. It should be accepted by the Commission from an honest and truthful witness. Consideration 61 The following facts are agreed: 1 The applicant responded to an advertisement in about mid May 1997, placed by the respondents for the position of a supermarket manager located in Bourke, New South Wales. 2 The applicant responded to that advertisement and travelled to Dubbo and Bourke in late May 1997 and was interviewed by the second respondent in relation to the position and inspected the supermarket premises. 3 Subsequent to that the applicant was offered the position and an offer of employment was presented in a letter dated 15 June 1997. The agreed salary was to be $50,000 per annum. The written offer which the applicant accepted had a three month probation period and termination within that period on two weeks' notice. 4 The applicant moved to Bourke in late June 1997 and commenced employment on 1 July 1997. On that same day the respondents took over the supermarket and the associated liquor store business. 5 The employment terminated on Sunday, 6 July 1997. On termination the applicant was paid in total $1,191.25, which represented approximately one week's net salary plus an amount of approximately $550 said to cover his moving expenses. Apart from that payment the applicant received no other reimbursement or remuneration from the respondents. 62 These proceedings had their genesis in an advertisement placed in the Sydney Morning Herald on 19 May 1997 which was in the following terms: MANAGER - SUPERMARKET Far western NSW town. Must be experienced in grocery and liquor sales. Excellent salary and condi- tions. Phone Russell. 068 82 9388 b.h. or 068 84 7156 a.h. 63 An extract from the applicant's letter dated 19 May 1997 applying for the position is set out below: Please accept my application for the position of "Supermarket Manager" as advertised in the Sydney Moring [sic] Herald, Monday, 19 May 1997.

I have an excellent track record in management. I had a Meat Market and Supermarket in a rural town in Northern California. The name of the town was called Corning. The Meat Market and Supermarket was a family business. The business was in the family for forty years. I sold the business in 1982 and moved to Australia. I have enclosed a Resume that should be self explanative [sic] in employment history and education background. 64 The respondents' letter dated 15 June 1997 of confirmation of appointment to the applicant was in the following terms: Dear Victor

I am pleased to advise you that your application for the position of Supermarket Manager of our Bourke store has been successful.

The employment is conditional on the successful completion of a 3 month trial period, within this period either party may elect to terminate the arrangement giving the other party at least 2 weeks notice.

The salary for this position will be set at $50,000.00 per annum to be paid weekly.

I will be formulating a complete job description in the near future based on the conversations that you and myself have had.

I have secured a house for you to live in and expect that you will sign the lease agreement at your earliest convenience, the house rental payments are not included in the terms of your employment.

You will be entitled to 4 weeks annual holidays, and the hours and days of the week you will be required to work will be worked out after consultation between you and myself.

Russell Winn 65 A major issue to be decided is whether the conduct of the respondents in terminating the services of the applicant was unfair, and if so, was the contract that permitted that conduct unfair. Termination of Employment Without Proper Reason 66 The second respondent explained that the reason he advertised on behalf of Zanmarl for an experienced supermarket manager was because this was the first business of this type that the company had been involved in. He was looking for someone to assist him in the day to day operations in a hands-on position. He had anticipated when he was negotiating to buy the business that his role in the business would be administrative. Because he had no experience in the grocery area, he was specifically after someone who had a fundamental knowledge of a supermarket and grocery store. Because of his experience in the liquor industry, he was not really concerned about that area of the business. 67 The business Zanmarl purchased was successful. Mr and Mrs Douglas had been in the business for approximately 8 years and had built the business up from approximarly $20,000 per week sales to around $55,000 to $60,000 per week. The second respondent needed to have someone there working with him who could maintain that income as well as maybe increase it. The second respondent told Mr Burks specifically that he was performing the administrative work in the business and that the applicant's job was to look after the running of the shop. He stressed to the applicant that he was the one with the knowledge and he was expected to operate the business in a competent manner. 68 He chose Mr Burks for the position because he had indicated to the second respondent that he had a good, solid and sustained experience in the grocery and supermarket business. He understood that Mr Burks' experience was not of recent time, but was assured that he would be able to do it, that would not be a problem. 69 Part of the general approach to the position of manager as envisaged by the second respondent was that: There was to be flexibility within the fact that Mr Burks was to start work when the business opened and he would finish at 5 o'clock. Within that period Mr Burks' flexibility was that as long as he performed his duties, you know, competently and efficiently, then he didn't specifically have to have one task, he didn't have to be at any one spot at any one given time. He wasn't on a factory's production line where he was the middle person. 70 The arrangements entered into with the applicant in relation to hours were: I said to Victor that the hours at this stage was that he would come in and open up and that he would be finished 5 o'clock. I mean, he is a manager who is getting paid a salary. I expect that if it's busy at 5 o'clock in the afternoon, the supermarket is full, that Mr Burks doesn't walk out the door. If it was quieter, he could leave earlier. 71 The supermarket opened at 7.30 am and closed at 7 pm in July when Mr Burks was there. Generally speaking the applicant was expected to be there from 7.30 until 5 o'clock or thereabouts, five days a week. One day off was to be Saturday, but arrangements had not been finalised as to the second day. 72 The applicant said that once the previous owners had left he would be dealing with the customers and managing the whole front of the shop i.e. making sure the employees were doing the right thing and that everything was running smoothly in the shop. However, when he started and wanted to manage the front of the shop and asked the previous owners for such things as the order books, they had got very upset. The applicant said he was told by Mr Winn to forget about it until Mr and Mrs Douglas had left. 73 The philosophy underpinning the approach of his family for more than twenty years to the businesses they had purchased and operated was explained by the second respondent. The family buys a business because they think the business is a reasonable one. They do not buy it to go broke. The people previously running it have not been running it to go broke. Therefore it was the second respondent's opinion that he, as the purchaser, does not go into any business and start making wholesale changes from day one and disrupting the existing flow of business. He liked to go in and make changes slowly. 74 The supermarket business in Bourke was profitable from the way the Douglases were running it, so there was no need to make wholesale dramatic changes. The only changes that could have made to probably improve it was to extend it and the respondents did have those plans until it was decided to build another two supermarkets in town. That would have been a fairly easily way to dramatically improve sales, because otherwise Mr and Mrs Douglas were very competent in running that particular business. 75 The second respondent said that he told Mr Burks to get as much information out of Mr and Mrs Douglas as he could because those people had been running that business for eight years. The respondents take over on Day 1. Mr and Mrs Douglas are the people with the experience so, logically, if they are prepared to spend two weeks to teach how their system is and their system is bringing in the money that the first respondent purchased the business for, it was not in the second respondent's mind possible to go and squander that time that those people were prepared to give. What the second respondent said to Mr Burks was to go and get the information out of Mr and Mrs Douglas, just run everything the way that they are doing it at the moment and learning what their system is. If later on the respondents decided that those systems were not compatible with the way that they wanted to run the business, fine, then the respondents would change them. In fact, one change made later was to install scanners. 76 It had been part of the agreement for the sale of the business that the former owners be on hand for the first two weeks after the purchase to assist the new owners. Mr and Mrs Douglas had both come to the second respondent and indicated that Mr Burks was not prepared to listen to them when they were advising him on things that needed to be done in the shop. 77 The applicant either completely misunderstood what the second respondent was saying to him about learning everything he could from Mr and Mrs Douglas, or he was displaying the inability to listen complained of by them. 78 From the first day that Zanmarl took possession of the business the second respondent said it became evident to him that Mr Burks did not have the experience, ability and aptitude to operate this particular business. 79 Matters said by the second respondent to have caused him concern as to the applicant's work included: the inability to order the correct level of stock, even when he was being advised by the previous owner who had been ordering right up until the day Zanmarl took possession of the business; the inability to operate the cash registers, even after Mr Burks had been shown several times; the amount of stock Mr Burks indicated was either out of date or close to its use by date, 25 to 30% of the total stock amount for the grocery department (that represented $20,000 to $30,000 worth of stock at the time of taking over the business and would approximately be 12 to 15 pallets of groceries). 80 Several times the second respondent went to the cash registers to see how much change there was in the drawer and when he looked, he found there were a lot of $50 notes and $20s, but no $5s or coinage. Part of the manager's job in any retail business is to check the cash registers to make sure they have enough change in them. He also found several times that there was a large amount of money in the registers. It is also part of a manager's job to make sure that the registers are not carrying too much money and to ensure that excess money is banked. 81 On several occasions, he saw that the hot food bar was empty of hot food. It was also part of the job to make sure the staff filled the hot food bar. 82 He walked out into the shop and found that the drinks fridges were close to empty. It was also part of the manager's job to make sure these fridges are full. On a couple of occasions he walked out into the shop and found customers waiting to be served, the staff were busy serving someone else. When the second respondent enquired as to where Mr Burks was, he was told he was out checking the back somewhere. 83 When stock was arriving into the shop it was part of Mr Burks' job as manager to make sure that the stock was checked and counted. Usually, this is done by checking or putting a tick next to the item on the invoice each time the item was identified and this also was not carried out. 84 He had raised those concerns with the applicant. 85 Leaving aside his own observations, the second respondent also took into account concerns raised by Mr and Mrs Douglas who told Mr Winn that they thought that the applicant did not appear to have a grasp of that type of business. 86 Mr Douglas said his function for the two weeks following the sale of the supermarket to the first respondent was to be present to advise the second respondent and his staff, not to do the work. Mr Burks, however, did not seem to respond very well to the advice given to him, as he seemed to have a mind of his own and wanted to do things his own way. Even when the applicant asked questions, he shrugged off the answers. 87 The second respondent said it was quite clear to him that the applicant could not carry out his instructions and that he did not have hands-on experience in this type of business at all. As the overall manager of the business and being himself employed by Zanmarl Pty Ltd, the second respondent said he was under an obligation to his employer to rectify the problem and to minimise any harm to the business. He said that in terminating the applicant's services on the Sunday morning "all I knew was that Victor was not suitable for that business and I had a duty to rectify it, that's all I knew". 88 In relation to the actual termination I accept that that termination was initiated by the second respondent. 89 I do not find it surprising that the second respondent was so quickly able to conclude that the applicant did not have the necessary practical experience to function as the Manager of the supermarket. 90 The second respondent accepted that the applicant had told him that he did not have a lot of experience in the liquor area. However, the deficiencies in the applicant's approach to the management of the up-front part of the business were not related to the liquor side of the business. 91 The practicalities of the concerns raised in the mind of the second respondent based on his observations of the applicant's ability at a hands on level were succinctly expressed by the second respondent when he said that most businesses are the same; if its retail: you know you have to have stock on the shelf. I had hot food bars that were empty, I can't make money out of no hot food in the hot food bar. You know, you walk around, if the stock is not in, the soft drinks aren't in the soft drinks fridge. I can't make money out of not having products there, you know. I go to the till, I open up the till, I got no change in it. I have customers that may be standing there five minutes later saying what sort of organisation is this. They have to run downstairs to get change, you know. 92 The applicant said that in the time he was working in the shop, he noticed that approximately 25% to 30% of the stock (greengrocery and dry goods) had either passed, or was close to, its use by date. He arranged for it to be put to one side for the auditors to check. Mr Winn's evidence was that the value of the total stock for that business on takeover was $148,000. The applicant's figures as to out of date stock meant that stock to the amount of $25,000 to $30,000 was out of date. Mr Douglas said that from memory the amount allowed for expired items of stock in the hand over of the business was about $2,000 to $2,200. In the light of the evidence of the second respondent and of Mr Douglas, which I accept, the applicant's evidence as to the quantity of expired or out of date stock was totally at variance with the actual situation. 93 Mr and Mrs Douglas had been personally involved in running the business, doing the ordering and having direct contact with customers (telephone or face to face). Mr Douglas described his duties as manager on a day-by-day basis as being to maintain the stock levels within the shelving and fridges, cool room; do the ordering of the stock, adjust prices of stock depending on the fluctuations on the invoices; the banking; any weekly records, prints of stock usages, et cetera. "Just general bottle shop cleaning and things like that". 94 The second respondent had it in mind that the manager's position would be a hands on one that would encompass those duties carried out by Mr and Mrs Douglas as well as direct involvement in the day to day activities of the shop. 95 However, it is clear from a 5 page document dated 7 July 1996 (sic) that the applicant had prepared but was not actually given to the second respondent, that the applicant had a somewhat larger and quite different view of the position of the manager. His views as to the manager's position are probably best encapsulated in the following paragraphs from that document: The manager's duties should be more advanced than learning how to lock-up, turn light off or operate cash register. I do understanding [sic] the above have some importance to it, however, the most important part of a manager are as follows:

i to supervise all staff ii who are the customers iii who are the potential customers iv who are the competitors

v what (a) business am I really in (etc) [7 more points]

The most important expertise for the manager is observation, developing hypothesis, predicting the future and testing those hypothesis. In other words, strategic planning is the most important component of the manager. The bottom line is how to get the cash register moving not how to operate it or turning lights off and on. The manager is responsible for productivity of employees, sales and marketing, display of food, service and etc. 96 It is not clear from the evidence just how many persons were employed by the first respondent. The liquor side of the business was run by one person with occasional assistance from casuals. The amount of stock that changed hands on 1 July 1997 was valued at $148,888. That does not suggest a large store. In the document discussed above, the applicant had set out a management plan for 7 employees, though I am not able to determine whether that number took account of employees additional to the existing complement. One remark suggested that could be the case. 97 Those paragraphs also confirm the second respondent's evidence that he had taken up concerns with the applicant. They also show the value the applicant placed on those concerns. 98 The evidence of Mr Douglas as to the applicant's attitude was also borne out by the above document. 99 I note also that the tone of the whole document would confirm the second respondent's claim that, on the Sunday morning the applicant came down the stairs at the shop and had a note with him and had read from the note and said, "I wrote this last night. I don't think you are utilising my talents and things aren't going right". 100 It is clear that the second respondent did say to the applicant, in response to changes suggested by the applicant, that changes would wait until Mr and Mrs Douglas left. It is also clear that, no matter how the applicant understood it, that the second respondent was not saying that those suggested changes would be implemented at the time they left, and that, in the meantime, the applicant should simply mark time. The applicant fundamentally misunderstood the second respondent's instructions as to the approach the applicant was to adopt towards Mr and Mrs Douglas. He also fundamentally misunderstood the role that the respondents had employed him to undertake as manager of the supermarket. On the basis of the 7 July document, his approach seemed to be informed by his previous positions as a project officer with bodies such as AusAid in Papua New Guinea and CDEP (Community Development Employment Project) for various Aboriginal bodies in Australia. In those instances he was involved in setting up projects and training local people to run them. Those did not appear to involve a hands on management role in an established business with already trained staff as was the situation he faced at Bourke. 101 The second respondent said that his decision to terminate the applicant's services was not a decision that was made at a point in time, but was based on different operational problems he saw throughout the week of Mr Burks' work that basically culminated in deciding either on Friday or Saturday that he could not do the job and he was basically unfit for that particular business. The second respondent said he came to the opinion that Mr Burks really could not do what he said he could do in his resume and what he had told the second respondent. He had spoken to Mr Burks about these operational problems and said that they were not acceptable, but he did not specifically say "if you don't do this you will be dismissed, but I made it clear I didn't want them continuing, which they did". 102 The second respondent told the applicant of his decision when the applicant came into work first thing Sunday morning. There is dispute between the applicant as to what was actually said at that time. In the light of my decisions as to the fairness of the reasons to terminate the applicant's services and the unfairness of the contract I do not think it assists to take that dispute further. 103 I find that the respondents were justified in terminating the services of the applicant. That termination did not evidence any unfairness in the contract. Probationary Period 104 The contract provided for 3 months probationary period and for notice of termination of 2 weeks at least, on either side. The applicant contended that both contractual terms were unfair in the circumstances of this case. 105 The applicant said he understood from the letter confirming his appointment that he was on a three months probationary period. It was submitted on behalf of the applicant that he paid no regard to the probationary period or the expressed notice period in the written contract in circumstances where he proposed to dedicate himself to the job and work hard. 106 The second respondent has a nineteen year history working in the hotel business and has employed many people in that time. He said that the more important the position, the more usual it was to have a three month probationary period. The three months period had been adopted on a solicitor's advice as being a fair and reasonable period within which to gauge somebody's ability. His experience was that quite often that assessment has been able to be made in a period a lot shorter than three months. He said he had a routine he followed with applicants for jobs in the hotels, that routine being to ask prospective bar attendants, for instance, to go behind the bar and show him how they operate as bar attendants. 107 Because Mr Burks' only experience in the grocery business was with his family business and his family business was situated in America the second respondent said he relied on Mr Burks' word as to his ability as a grocery manager. Zanmarl Pty Ltd did not own another supermarket to which it could send Mr Burks and observe his ability and competency on a daily basis prior to him moving to Bourke. The only place where it could observe Mr Bourke was when he started work at Bourke and watch how he performed. That was one of the reasons why the second respondent said to Mr Burks he would be on a three months trial period. 108 The usefulness of the probationary period goes beyond such practical aspects as observing how competent an applicant actually is in a position to other matters such as seeing how the employee measures up in the workplace as to interaction with other people. A probationary period offers the utility of finding out whether, for instance "paper" qualifications that may have been offered are a true indicator of the effectiveness of the employee in the actual job or that claimed experience is actually demonstrated in practice. 109 I do not accept the applicant's contention that the probationary period was unfair. It was one for the benefit of both parties. It allowed a reasonable period within which each party could assess his satisfaction either with the job itself and its conditions (the applicant) or, for the respondents, with the fitness of the applicant for the position. Period of Notice 110 The applicant submitted that the two week notice period was particularly unfair. 111 The services of the applicant were terminated on the Sunday following his starting work on the Tuesday. The respondent paid him one week's wages and made a contribution to his removal expenses in leaving Bourke. 112 The second respondent said he said to Mr Burks that although he had not actually worked a full week, he was prepared to pay him a full week's pay and because of the fact that he had moved, made an effort to go to Bourke, he would pay him $550, to help him with his expenses in relocating himself back to where he came from. 113 He had thought that $550 was a reasonable figure because the applicant had said that all his furniture had come up on the back of a ute, so, as far as the second respondent was aware at that stage, there were not any real moving costs. In making that payment of $550, the second respondent was not covering the applicant's costs to come to Bourke. He was covering the costs for him to move from Bourke based on the above mentioned understanding as to the extent of the applicant's possessions. 114 The formal offer of employment to Mr Burks included the following paragraph: "I have secured a house for you to live in and expect that you will sign the lease agreement at your earliest convenience. The house rental payments are not included in the terms of your employment." The applicant said that that statement demonstrated that the employment would be permanent and on going. 115 The second respondent explained that when he said he had secured a house for Mr Burks, he meant that when he went to Mr Whitbread, a local real estate agent, on his own behalf, Mr Whitbread said that he had a house available and, because there were not many houses available in Bourke, the second respondent asked Mr Whitbread if he could possibly hold it until Mr Burks had a look at it. The second respondent expected the applicant to sign a lease agreement as just being a normal course of proceedings, but did not expect him to sign one for any particular period. The lease was the applicant's responsibility. The second respondent knew the applicant had a family by his resume and had indicated that he was at some stage going to bring them to Bourke to live. 116 The period of notice has to be examined in the light of the employment relationship as it unfolded. The longer the relationship subsisted, the more likely that circumstances could (not necessarily would) arise that would render that term of the contract unfair eg promotion over ten years to a position with maximum management responsibility. 117 In this case it was not the length of time within which a person might feel comfortable taking on the full duties of the manager as had been submitted on behalf of the applicant that would give rise to consideration of the adequacy of the notice period. What was important was the wide gap between what the respondents wanted the manager to do and what the applicant thought were the appropriate duties and approach, and that gap became evident at a very early stage in the relationship. 118 The letter of appointment did not provide for pay in lieu of notice. The applicant's summons for relief pursuant to s 106 did not explicitly seek an order for pay in lieu of the twelve months notice sought, though the amount was particularised in the money claims. It was not a claim that would catch the respondents by surprise. 119 The contract of employment provided for two weeks notice. In my view, in the light of a termination within the probationary period, that was not prima facie unfair. 120 The second respondent said that the only discussion he had with the applicant about the timing of his departure was that he said to Mr Burks that he was quite welcome to work the two weeks if he wanted to but other than that, no. That offer was first mentioned in oral evidence. The applicant says that offer was not made. In any event, the evidence as to the different expectations each of the parties had as to the job, and how those expectations had been translated into action in the preceding days, shows how impractical such an arrangement would have been. 121 Contrary to the respondents' argument, it was not reasonable that the applicant not be paid two weeks pay in lieu of notice just because he had only worked for four days. The letter of appointment provided for at least 2 weeks notice during the three month trial period. His services were terminated within that three months. Because the situation was such that it was not a real option to work out the notice, fairness required that he should have received two weeks pay, but that was not provided for in his contract of employment. 122 I find that that lack of a provision for payment in lieu of notice caused the contract of employment as set out in the letter dated 15 June 1997 to be unfair in terms of s 105(a). 123 That finding having been made it is necessary to determine whether orders should be made pursuant to s 106. Alleged Misrepresentations by Applicant 124 In resisting the making of orders in favour of the applicant, the second respondent relied particularly on what he regarded had been misrepresentations by the applicant in his resume as to his previous experience in the management of a supermarket. He pointed to the differences between the resume attached to the applicant's affidavit in these proceedings and that forwarded to him at the time of the applicant's application for the job of supermarket manager, in that the employment history between 1972 and 1983 had not been advised to him. The respondent characterised the fact that the applicant presented a CV to the Court, different from the one supplied to the respondent with his application, as lies and misstatements etc. On that point, the respondents are relying upon later acquired information to justify the termination. 125 However, the main complaint of the respondents as to the alleged misrepresentations is that they say that the applicant from the beginning of the relationship had put himself forward as having skills in supermarket management that he did not in fact possess. 126 Mr Winn put it to the applicant that he had employed him on the basis of the letter of introduction, the resume and the facts given by the applicant orally. The applicant said the facts were in his resume and the letter of introduction. 127 It is natural for an applicant to tailor a CV to highlight those aspects of it that will, the applicant hopes, most influence the employer to react favourably to his application. There is nothing wrong with that as long as fraud or editing to an unsustainable degree is not indulged in. In this case the applicant did burnish to a greater gloss one aspect of his background, namely that of his involvement in his family's supermarket in California, especially as to the nature and extent of that involvement. 128 In the circumstances I accept that the explanation given by the applicant for the differences in the resumes complained of by the second respondent was reasonable: 3. I refer to paragraph 4 of the second respondent's affidavit and say that I did not place much weight on the experience I had gained in my family's business and did not generally include it in the resume I used for employment applications. I regard my tertiary level qualifications and post graduate studies in conjunction with the various employment I have undertaken over the years, to be of more significance than my involvement with my father's meat market and grocery business ("the family business"). However as the subject business was similar in nature to my family's business I decided to include it. 129 I do not need to make specific findings as to credit. The perceptions of the parties as to events and as to the requirements of the position were obviously different, even if sincerely held. I am able to make findings in the light of the overall evidence. Redundancy 130 The applicant's claim that his termination was one in the nature of a redundancy arising out of a restructure of the manager's position was based on his assertion that the applicant was replaced by a trainee manager at a lesser salary, that person being the niece of Mr and Mrs Douglas. 131 The second respondent did not agree that he had restructured the management position. Early in the week following the applicant's termination he had tried to obtain another manager. He asked for suggestions from Mr and Mrs Douglas. 132 He was keen to find somebody who had the qualifications to do the job. Bourke is a town which is some 800 kilometres from a major centre and it is very difficult to get employees of a managerial calibre to go there. There was a need at that time to do something because of the second respondent's inexperience in the supermarket business. He had to have somebody there who could operate the main part of the supermarket on a day-to-day basis, because he knew he did not have the necessary skills at that time. 133 He approached Mrs Boch and another person who now works in the supermarket up the road from this particular business. Ms Boch had been an assistant manager for eight years at the Bourke Payless supermarket, prior to it being burned down. (It is clear from the evidence that Ms Boch was neither the niece of Mr and Mrs Douglas nor was she employed as a trainee manager, as was claimed by the applicant.) 134 He employed Ms Boch some weeks later as supermarket manager, but with less authority than the applicant was going to have. That was because she only wanted to work Monday to Friday between 8 am and 4 pm. That was at a time when the business operated seven days a week and was open between 7.30 am and 8 pm. The second respondent had expected the applicant to work five days a week, one of those days being at the weekend, while the shop was open and to have more control over a lot more of the ordering. The duties of the applicant and of Ms Boch insofar as being out the front doing the day to day business of the supermarket were similar. Because of the hours she was willing to work, the second respondent had to be present at the business more than if Mr Burks had been there. 135 She was paid less than the applicant. Her agreed rate of pay for the hours and days she worked was $600 per week. That rate later went down to $550 per week when the second respondent employed a husband and wife team who did some managerial work, so that Ms Boch's responsibility was diminished. Ms Boch left in March 1998. 136 Mr and Mrs Douglas had basically operated the supermarket and the liquor store as one business. At the time the second respondent gave evidence, the supermarket was being fully operated by someone who paid the first respondent rent. A contract to sell it had not been concluded. The first respondent still operated the liquor store business, with a manager to look after it on a day to day basis. 137 The applicant's submissions as to redundancy because of restructure of the business were not made out. To the extent there was any restructure of the management, that restructure was the outcome of the applicant's departure, not the cause of it. The fact that the new supermarket manager, Ms Boch was paid less than the applicant was primarily because of the different hours worked by her with resulting different responsibilities. It was not until a year later that Mr Stinton was employed. Is Second Respondent a proper Respondent to the Application? 138 The second respondent disputes that he is a proper respondent to this application and that orders should not be made against him. 139 Zanmarl Pty Ltd is a company that commenced operation about May 1997. The one shareholder identified in the ASIC's historical company search is Truemist Pty Ltd as trustee for the Winn Family Trust Number 1. Zanmarl was purchased as a vehicle to purchase the business of the Welcome Mart Supermarket in Dubbo from Mr and Mrs Stanley Douglas who retained ownership of the real estate. Mrs Maureen Winn, mother of the second respondent, was director and secretary of Zanmarl until 15 September 1997. Russell Brian Winn was appointed a director on 15 September 1997. He remains the sole director of the first respondent and is the company secretary. 140 Russell Winn had been engaged in the negotiations to purchase the supermarket from Mr and Mrs Douglas. He then ran the supermarket business on a day to day basis and made any necessary decisions as to it. 141 It was Russell Winn who was responsible for all the steps from advertising the position onwards that led to the engagement, and later termination, of the applicant. 142 The cheque for $1,191.25 dated 7 July 1997 given to the applicant on termination was drawn on the account of Zanmarl Pty Limited, trading as Welcome Mart Supermarket. 143 I find that the newspaper report relied upon by the applicant as to the second respondent's status as "owner" of the supermarket has no probative value. 144 The issue as to persons, not parties to a contract, who could have orders for payment of money made against them was dealt with definitively by Barwick CJ in Brown v Rezitis [(1970) 127 CLR 157 at 164ff] where he said: But underlying sub-s (2) is I think a broad concept of a restitution of the parties to a situation which existed before the making of the contractual arrangement as well as in an appropriate case to make remedial provision for what has taken place or been done under the contract in the meantime. This, it seems to me, cannot of necessity and in all cases and with relation to an arrangement varied or avoided on each of the grounds in sub-s (1) be confined to an order for payment of money by one of the parties. In some cases, as I have said, there will be persons who are not the parties to the contract but who have in fact participated in its making and there may be persons who have received money indirectly from one of the parties to the contract or who may be holding money derived therefrom for one of the parties. Consequently, I am of opinion that the power to order the payment of money is not limited to the making of an order for the payment of money by one of the parties to the contract or arrangement varied or avoided. 145 A different aspect of the situation is described in Beahan v Bush Boake Allen Australia Limited [(1999) 93 IR at 35]: What emerges from the above authorities, we think, is the now settled view that s 106 (as with the previous s 88F of the 1940 Act and s 275 of the 1991 Act) is directed to an impugned contract of employment, whether existing or terminated, as to the fairness of its express or implied terms. Such unfairness will depend upon the facts of each particular case by focusing attention on the contractual relationship between a particular employer and employee and where the unfairness may arise from the terms of the contract itself, the surrounding circumstances and/or the manner of performance or operation of the contract. The section, we emphasise, is not concerned with re-establishing an employment relationship which has ended nor with compensating an employee for the loss of his employment contract. In other words, the section is properly concerned with the fairness of the terms of a contract of employment in its various respects and, if relevantly found to be unfair, to provide remedial relief by avoiding or varying the terms of that contract and to order the payment of money in connection with any contract so avoided or varied as is considered just in the circumstances of the case. 146 I find that on the evidence Russell Brian Winn is a proper respondent to this application and, in the light of my decision, it is proper he be included in the orders the Court makes pursuant to s 106(5) in providing remedial relief to the applicant. Incapacity to Pay 147 Zanmarl has one ordinary share issue to the value of one dollar. The one shareholder is identified in the ASIC company search as being Truemist Pty Ltd, as trustee for the Winn Family Trust (No 1). 148 At about the time Zanmarl took over there were two supermarkets, including that run by Mr and Mrs Douglas, each of which had increased its business after the Payless store burned down 18 months earlier. 149 Mr Winn said that the respondent could not afford to pay the amount claimed. The business will have difficulty meeting the legal costs of defending the claims as it is. 150 The business is generally successful in returning a profit the way that it is structured now. 151 The liquor side of the business earns money. Zanmarl still operates the liquor store business, employing a manager who runs it on a day to day basis, holiday relief being provided by the second respondent. 152 The supermarket was not doing so well for Zanmarl. The supermarket business was in May 2000 being fully operated by someone else who pays Zanmarl rent. Attempts by Zanmarl to sell it had been unsuccessful. 153 Asked whether Zanmarl Pty Limited could meet a debt of, say, $50,000, the second respondent said that Zanmarl Pty Limited has a fixed and floating charge facility which basically has first right over all the assets in that particular company. That charge at this date is $105,000. The fixed and floating charge for $105,000 was a loan to pay out the remainder to Mr and Mrs Douglas. At the present time in Bourke itself two new fairly large supermarkets are being built. The competition that Zanmarl has has increased probably 50 per cent the supermarket area. So, the prospects for grocery sales in Bourke are fairly dismal which would mean that basically the value of the grocery business will be negligible. Bourke has a population of around 2,800, 2,900 with a service area of around 4,000 people. Cobar which is 130 kilometres south of Bourke has a population of around 6,500 and when it had a fairly strong mining sector and there was a fair bit of wealth in the town, it only had two supermarkets. The second respondent could only speculate how Bourke is going to survive with four supermarkets. 154 The respondents did not produce any accountancy evidence to support their claims of incapacity to make payments ordered by the Court. I have nothing before me that enables me to conclude that the respondents cannot satisfy the monetary orders I propose to make. 155 The claim of incapacity to pay is rejected. Conclusions 156 Sections of the 1996 Act relevant to the determination of this application are set out below: 105 Definitions

contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument.

(c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or

(d) that is designed to, or does, avoid the provisions of an industrial instrument.

Note. The jurisdiction of the Commission under this Part is exercisable only by the Commission in Court Session.

Division 2 Unfair contracts may be declared void or varied

106 Power of the Commission to declare contracts void or varied

(1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract.

(2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason.

(3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time.

(4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force.

(5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case.

… 157 I conclude that the termination provisions of the contract as to the lack of a provision for payment in lieu of notice, could, and did, in the circumstances of this case, operate unfairly and should be relevantly varied. 158 The extent to which the contract has been found to offend s 105 and all the circumstances leading to that finding are factors to be taken into account in the consideration of what orders as to the payment of money should be made pursuant to s 106(5). 159 The applicant seeks orders for payment of moneys that encompass his expenses to attend the job interview in Dubbo, the costs of relocation to and from Bourke and the costs of storing furniture. 160 All of those items are open to be considered for inclusion in orders made pursuant to s 106(5) in the event that a contract has been found to be unfair in terms of s 105 and s 106. 161 The applicant claims payment of expenses incurred in attending the job interview in Dubbo and for the costs involved in relocating to and from Lismore/Bourke/Lismore. An employer, anxious to fill a position, may offer to cover such costs as an inducement to a person to take up a position. Similarly, an applicant anxious for a position, may be willing to bear the expenses necessary to obtain an interview. 162 In this case, Mr Winn paid for the applicant's accommodation in Dubbo when he came up for the employment interview. He also contributed the amount of $550 to assist him to move from Bourke, on the basis of his understanding that all the possessions the applicant had were those that a friend had brought up on the back of a ute. 163 In the absence of any specific arrangements, or of misrepresentation by the would be employer, reimbursement for such costs to the employee, would not call for the intervention of the Commission. 164 The contract of employment has been found to be unfair as to one specific aspect, namely no provision for payment in lieu of notice. That unfairness does not call for remedial action in relation to the majority of the expenses involved in relocating to and from Bourke. 165 I fail to see how the cost of maintaining and visiting the applicant's family in Papua New Guinea whilst he was looking for alternative employment can be visited on the respondents. That claim is refused. 166 Furthermore, even if the applicant declined another offer of employment available to him at the time he accepted Zanmarl's offer, a claim contested by the respondents, that occurrence would not lead to any monetary orders in his favour in the circumstances of this case. He had travelled to Bourke and had talked extensively with the second respondent. He had visited the supermarket. He had been offered the position and after consideration over some days had accepted it. He had later sought and received the offer in writing. There were no misrepresentations on the part of the respondents to induce the applicant, in the first place, to apply for the position, and in the second, to accept it. It was up to him as to which position he would pursue and for him to make his decision after balancing the perceived advantages/disadvantages to him of the two offers. 167 The applicant had not been in a weak bargaining position vis a vis the respondents. The Sydney Morning Herald advertisement was run twice. There had been one applicant other than Mr Burks and a lot of phone calls. As soon as the callers found out that the location was Bourke they lost interest. The applicant was the only one interviewed because the second respondent understood from what was said in their telephone conversation, that the applicant had the abilities he was looking for, despite the fact that the applicant did not have the requisite experience in the liquor area. 168 The impugned contract has been found to be unfair in one respect only - that it did not provide for payment in lieu of notice. 169 That failure does seem to me to have had one relevant flow on effect. That is, if the applicant had had the additional moneys on hand to arrange for transport of his goods, he may have avoided the necessity to store them prior to relocating back to Lismore. 170 The applicant's services were terminated on 6 July 1997. He made four payments in relation to storage costs: $87 (9/7/97); $89 (25/7/97); $107 (26/8/97) and $160.50 (10/10/97). One would assume that those payments were made in advance. It would seem that the furniture/furnishings were left in storage until they were moved on his being successful in achieving his next position at Oodnadatta in October or November 1997. (The applicant's evidence of that date varies.) I do not think that the respondents should pay for storage for that full period, which it seems to me to have been extended to suit the convenience of the applicant and not imposed on him by any unfairness of the contract. 171 Pursuant to s 106(5) the Court proposes to make the following orders: (1) The contract made between the applicant and the first respondent as embodied in the letter dated 15 June 1997 on the letterhead of Bourke Welcome-Mart Supermarket and signed by Russell Winn is varied ab initio to provide for two weeks pay in lieu of notice. (2) Zanmarl Pty Limited and Russell Brian Winn shall pay to Victor Lee Burks: (i) two weeks wages based on a salary of $50,000 per annum; (ii) the sum of $196 as reimbursement for storage costs paid on 9 July 1997 and 25 July 1997; (iii) interest on the above amounts at the appropriate Supreme Court rates as from 28 January 1999, the date of filing of this application. (3) The payment in order 1(i) shall be at the most tax beneficial rate available for the applicant. (4) Zanmarl Pty Limited and Russel Brian Winn are jointly and severally liable for the above payments, but no amount greater than the total of Order 2(i), (ii) and (iii) is payable to the applicant. 172 The applicant, in consultation with the respondents, is to draw up and file and serve within 21 days draft orders that embody those proposed orders. 173 The parties are to confer as to costs. If agreement cannot be reached, the matter may be relisted for further short submissions.

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