You can either sign the contract or you can go back to MTN.
30 The applicant delayed signing the draft agreement and continued to negotiate a number of amendments. He was unsuccessful in persuading Digicore to meet FBT responsibilities for his motor vehicle. The termination clauses remained in the same terms as did the restraint clauses, although the restraint period was reduced from 6 months to 3 months. Draft Item 4 was amended to provide for a 1% commission on gross sales. The applicant's base salary of $10,000 per month remained unchanged.
31 The applicant signed the agreement on 26 November 1999. At the time he was unaware that DA had not been incorporated. He says when he signed he was, "... fearful that (Mr Wasson) and (Mr Van Kempen) would carry out their threat to send me back to South Africa".
32 On 15 November 1999, the applicant attended a meeting during which Mr Wasson informed those assembled that Digicore's operations would be restructured with DT as the main trading company and DD as a subsidiary of DT. All stock was to be invoiced to DA by DT.
33 Within the Digicore group the applicant was responsible for corporate relations, marketing, sales, administration, business development and operations. All financial decisions made by him were referred to Mr Wasson and Mr Van Kempen, although because Mr Wasson was rarely present, most authorisations (in 1999) came from Mr Van Kempen. The applicant says he worked long hours and often on weekends. He travelled throughout the eastern Australian states. He organised trade shows and presentations. The intention was to appoint distributors and through them sign up clients to the C-Track system. The applicant claims he signed up a number of high profile clients such as Australian Native Landscapes, Bunker Freightlines, IR Cootes Pty Limited, NSW Police and Sydney Waterways.
34 On 24 January 2000, during a meeting with Mr Wasson and Mr Van Kempen, the applicant was told to organise road shows which involved five presentations in state capital cities over a ten-day period. The applicant was given only 30 days to prepare the road shows. In the end, because of tight deadlines and schedules, presentations were only given in Perth, Adelaide and Melbourne.
35 In April 2000, the applicant attended a meeting during which Mr Wasson gave a powerpoint presentation concerning the restructuring of DA's operations. The applicant's position at DD was described during the presentation simply as "Indirect Sales & Marketing". The applicant says that until that time there had been no discussion with him about changing his title which had been general manager of Digicore Australia. At about the same time, Alex and Lorraine Van Niekerk arrived in Australia from South Africa to work for the Digicore Australia group. Mr Van Niekerk was appointed to the position of Direct Sales Manager at DD on the same level as the applicant.
36 On 1 July 2000, Mr Scheffer, who was Mr Wasson's uncle, commenced working at Digicore Australia. According to the applicant, Mr Wasson and Mr Scheffer "strongly encouraged" the sales of Digicore products as rental transactions. Outright cash purchases, said the applicant, were "strongly discouraged". In cross-examination, Mr Scheffer took issue with these statements. Mr Scheffer explained that rental financing was encouraged through T because it was the best way to finance the C-Track product but that cash purchases were not "strongly discouraged".
37 The applicant, in his affidavit, described his relationship with Mr Wasson (and later with Mr Scheffer) as "difficult". According to the applicant, Mr Wasson put personal expenses for motorcross activities through Digicore Australia accounts. Substantial personal expenses relating to motor-cross bikes, road and air travel, fuel, spares, courier fees for parts, tools, vehicle usage all of which were incurred by Mr Wasson were paid by Digicore Australia. In addition, the applicant claims that Mr Wasson employed Digicore Australia staff solely for their motor-cross prowess. One such employee, the senior C-Track installer in 2000 was often not available for installation work because he was occupied with setting up motorcycles for competitions. Travel expenses for members of Mr Wasson's family and friends were also charged by Mr Wasson to Digicore Australia accounts. The applicant says that these and other expenses were originally charged to his Diners Club account and that later he was reimbursed by Digicore Australia.
38 In his evidence Mr Scheffer agreed that Mr Wasson was using Digicore's company finances to fund his own motorcross activities. He said Mr Wasson also used T's funds for this purpose. Mr Scheffer described it as an "understatement" that Mr Wasson had no difficulty using other people's money to meet his own ends. Mr Scheffer said that he became aware that Mr Wasson was using company funds for private use within a few days of arriving in Australia (that is some time within the first week of July 2000). Mr Wasson, says Mr Scheffer, was spending about $20,000 per month on the company credit card for his private motorcross activities and flying friends all over Australia. Eventually, Mr Wasson's credit card was cancelled at Mr Scheffer's instigation although Mr Scheffer was unsuccessful in getting Mr Wasson to repay moneys outstanding in the sum of $150,000. Mr Scheffer said he was seriously concerned about Mr Wasson removing company funds for his private purposes and that he raised those concerns with Mr Van Kempen.
39 The applicant also described difficulties that the he had with Mr Wasson, for example his attempts to obtain a good quality colour printer in order to prepare quality proposals for clients. The applicant also had a personal Diners Club credit card and a second card marked "Digicore Australia" for business expenses. The applicant would submit statements to Digicore Australia for payment together with documents supporting claims. Payments had to be approved by Mr Wasson. Initially, the company made prompt payments. In early to mid 2000 however, according to the applicant when Mr Scheffer took control of finances, he delayed making payments. On 2 August 2000 the applicant received a Diners Club demand for immediate payment in the sum of $5,693. He approached Mr Scheffer who undertook on behalf of Digicore to pay the amount by 24 August 2000. On 28 August 2000 the appellant was contacted by a Diners Club representative who informed him that the account remained unpaid. The applicant again approached Mr Scheffer to authorise payment. He was told that the company had cash flow problems and Mr Scheffer would have to get the funds first. The amount remained unpaid and on 12 September 2000 the applicant was notified by Diners Club that it had cancelled his credit facilities. On the same day the applicant paid the outstanding amount out of his own personal savings.
40 On 18 July 2000 Mr Scheffer called the applicant into his office and said to him:
The General Manager's Position has been made redundant due to the new structure of the organisation. I have found ways to take costs out of the business. I can get an Australian to look after the dealers at well under $6,000 per month. I can offer you the position of Business Development Manager which will become available on 1 August 2000 at a somewhat reduced salary.