Oracle Systems Australia Pty Limited v Michael John Pym

Industrial Relations Commission (NSW)|2004-08-27|Before: Marks J, Schmidt J, Haylen J, Glynn J

Industrial Relations Commission of New South Wales in Court Session

CITATION: Oracle Systems Australia Pty Limited v Michael John Pym [2005] NSWIRComm 15

ORACLE SYSTEMS AUSTRALIA PTY LIMITED (ACN 003 074 468) Appellant/Cross-Respondent

PARTIES: MICHAEL JOHN PYM Respondent/Cross-Appellant

CORAM: Marks J; Schmidt J; Haylen J

Appeal - unfair contract - applications for leave to appeal - calculation of bonus entitlement - leave to appeal refused - calculation of interest - leave to appeal refused - costs and offer of compromise - leave to appeal refused -costs order - leave to appeal refused other than in relation to pension fund claim - pension fund claim - leave to appeal granted - new evidence received - contract found unfair and varied - consequential money orders - orders made as to costs of first instance proceedings and on appeal and interest

CATCHWORDS: Evidence - further evidence received in relation to pension fund entitlements not put before trial Judge

LEGISLATION CITED: Industrial Relations Act 1996

Abboud v NSW Department of School Education (2000) 99 IR 299 Gambotto v John Fairfax Publications Pty Ltd (2001) NSWIRComm 249 Gregory John King v Cake It Away Pty Limited [2004] NSWIRComm 377 Health Administration Corporation and Ors v Crocker and Ors [2004] NSWIRComm 163 House v The King (1936) 55 CLR 499 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Kennedy v Northern Sydney Area Health Service (2003) NSWIRComm 75 Micallef v ICI Australia Operations Pty Ltd v Anor [2001] NSWCA 274 CASES CITED: Michael John Pym v Oracle Corporation and 2 ors [2003] NSWIRComm 127 Michael John Pym v Oracle Corporation & 2 Ors [2003] NSWIRComm 299 Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 Sydney Water Corporation Limited v Industrial Relations Commission of NSW [2004] NSWCA 436 Vasile Nan v Andreas Van den Berg and Ors [2004] NSWIRComm 361 Walker v Industrial Court of New South Wales (1994) 53 IR 121 Westfield Holdings v Adams (2001) 114 IR 241

APPELLANT/CROSS RESPONDENT: Mr AR Moses of counsel SOLICITORS: Hunt & Hunt LEGAL REPRESENTATIVES:

RESPONDENT/CROSS APPELLANT Mr SJ Burchett SOLICITORS: Toomey Pegg Drevikovsky Lawyers

18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

FULL BENCH CORAM: Marks J Schmidt J Haylen J DATE: 10 February 2005

Matter Number IRC 6404 OF 2003 ORACLE SYSTEMS AUSTRALIA PTY LIMITED v MICHAEL JOHN PYM Application by Oracle Systems Australia Pty Limited for leave to appeal an appeal against a decision of Justice Glynn given on 17 October 2003 in Matter Number IRC 1993 of 1998. JUDGMENT

1 In April 2003, Glynn J dealt with a claim brought by Michael John Pym under s106 of the Industrial Relations Act 1996 ('the Act'), claiming that his contract of employment had been unfair in a variety of respects. (Michael John Pym v Oracle Corporation and 2 ors [2003] NSWIRComm 127.) The contract was found unfair in only one respect, namely bonus. Mr Pym did not receive any pro rata bonus payment when his employment came to an end on account of redundancy. This her Honour found to be unfair in the circumstances prevailing. Money orders in excess of $790,000 were sought, but refused. In a judgment given in October 2003, the employer, Oracle Systems Australia Limited, was ordered to pay Mr Pym $20,682.60, together with 30% of his costs. (Michael John Pym v Oracle Corporation & 2 Ors [2003] NSWIRComm 299.)

2 Both Mr Pym and his employer sought leave to appeal and appealed various aspects of the two judgments.

3 Leave to amend the notice of appeal was sought by Mr Pym and was granted at the hearing. In her April judgment, Glynn J held at [203] to [205]: 203 It is common ground that KPMG Legal have the sum of $25,000 in its trust account for the applicant's benefit in the event that independent verification is provided of the shortfall, if any, in the applicant's UK pension fund. 204 If there is an amount owed in relation to the applicant's UK National Insurance, that amount will be a specific figure. There is no reason to gross it up as claimed by the applicant. 205 I do not see that the respondent's conduct on this issue is such as to cause the applicant's contract of employment to become unfair in terms of s 105.

4 When the appeal came on for hearing on 27 August 2004, payments to the UK pension fund, of a sum in excess of $17,000 on Mr Pym's case, had still not been made and there was a concern that the money held in the trust account of the employer's former solicitors, was no longer available to satisfy what was outstanding. That concern was addressed by the employer during the course of the hearing and, after leave to amend Mr Pym's appeal was granted, the parties agreed on a timetable during which they would seek to resolve the outstanding issue. Failing agreement, the parties were to file submissions on this aspect.

5 In 1999, the employer unsuccessfully pursued a motion seeking dismissal of the proceedings for want of prosecution and other orders. The costs of the motion were not dealt with by her Honour. It was agreed at the hearing of the appeal that costs of this motion should follow the event. The employer consented to an order being made against it, in respect of those costs.

6 In the 30 April judgment, Glynn J found that the contract of employment was unfair, because of the failure of the third respondent to pay pro rata bonus for the period 1 December 1995 to 16 March 1996. Her Honour varied the contract to require payment of that bonus, in the event of termination by way of redundancy.

7 There was a contest between the parties as to the calculation of the consequential money order, having regard to that aspect of the employer's bonus formula reflecting Mr Pym's performance. In the October judgment Glynn J ordered payment of $20,682.60, rejecting Mr Pym's approach to the calculation. Her Honour declined to award the higher sum claimed, having regard to evidence of Mr Pym's departure from Australia prior to the conclusion of the period of notice given by the employer. There was an appeal by Mr Pym, it being argued that the amount ordered was inadequate, having regard to the evidence that he had done all that was required of him by the employer, during the notice period. It was Mr Pym's case, that his early departure reflected a need to travel at that time, given the impending birth of a child and steps taken by the employer to notify the Department of Immigration of the termination of his employment.

8 It is well settled that leave to appeal will not be lightly or automatically granted (see Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265). The public interest test in s188(2) of the Act must be met or the decision attended with sufficient doubt to warrant it being considered on appeal. (See also Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382 and Health Administration Corporation and Ors v Crocker and Ors [2004] NSWIRComm 163 at [36]).

9 We are satisfied on the evidence that this test was not met by Mr Pym in relation to the question of bonus. We also note that in the appeal proceedings the matters of leave to appeal and the appeal were heard together in both cases. The test on appeal in the case of discretionary decisions is that discussed in House v The King (1936) 55 CLR 499 at 505. It requires that the appellant show that the trial judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide the decision, that the judge mistook the facts or did not take into account some material consideration, before the appeal court will exercise its discretion in substitution for that of the trial judge. (See also the discussion in Micallef v ICI Australia Operations Pty Ltd v Anor [2001] NSWCA 274).

10 We are also satisfied that no error of this kind was apparent in this aspect of her Honour's judgment. This was not a case of restitution of the parties to their former position, as was argued for Mr Pym, but rather a question of what money orders should be made in the circumstances revealed on the evidence, her Honour's order having created a new contractual right to payment of pro rata bonus on termination for redundancy.

11 Determination of the consequential money order required that justice between the parties be achieved, having regard to their respective conduct (s106(2)). In assessing the pro rata bonus payment, Glynn J took account of the fact that Mr Pym left Australia before the termination of his employment. Her Honour's conclusion was plainly open as a matter of discretion in the light of that evidence.

12 Leave to appeal on this question must therefore be refused.

13 In determining the date from which interest should run, Glynn J noted in the October judgment that Mr Pym's employment was terminated as from 18 March 1996 and that he did not commence the proceedings until the filing of the summons on 21 April 1998. Her Honour then referred to the progress of the proceedings through conciliation and the fact that case preparation commenced in December 1999. During the course of the case preparation process, her Honour observed that there was a failure on the part of the employer to have the proceedings re-listed on one occasion and a failure by Mr Pym to appear on another occasion. When the matter was allocated to her Honour for hearing, the third respondent filed a notice of motion seeking that it be dismissed for want of prosecution. The motion was ultimately dismissed.

14 Her Honour, nevertheless, concluded that "in the light of that history, interest will run at Supreme Court rates on the monies to be paid in consequence of this decision as from 9 February 2001".

15 Mr Pym appealed this aspect of the October judgment, arguing that interest should be calculated from an earlier date.

16 It is well settled that the awarding of interest and the fixing of a date from which interest should run is a discretionary matter, to be exercised in this aspect of the Court's jurisdiction, in accordance with the statutory injunction in s106(5), that money orders "just in the circumstances of the case" be made. (See Abboud v NSW Department of School Education (2000) 99 IR 299 at 307.) We are satisfied that the date from which interest was ordered was within the exercise of her Honour's discretion in the circumstances of this case. It was neither unreasonable nor unjust, as was submitted. There was no error of the kind discussed in Micallef or House v The King. Nor was the public interest test met. We decline to grant leave to appeal on this question.

17 The employer had made an offer of compromise under Part 23 of the Rules of this Court on 22 August 2001. The offer was to settle the matter with the applicant on terms that it pay Mr Pym the sum of $55,000 inclusive of interest; that the sum of $17,280 together with interest be paid with respect to the claim for alleged shortfall in employer UK pension contributions, provided Mr Pym produce third party confirmation of the alleged shortfall; that the third respondent paid the applicant's legal costs as agreed or assessed; and that "the applicant executes a deed of release in relation to all matters concerning his employment and the termination of his employment with the respondents".

18 Her Honour noted that the sum of $20,682.60 which the employer was ordered to pay was inclusive of interest and was thus less than the sum of $55,000 offered in the formal offer of compromise.

19 Her Honour, nevertheless, rejected the submission that the employer should be entitled to benefit from Mr Pym's failure to achieve a successful outcome in excess of the amount of the offer, reflected in a costs order in its favour. Glynn J concluded that the terms of the offer were not "clear, precise, certain and capable of acceptance". This was because it was "hedged with conditions". One condition was the provision of verification of the shortfall in the UK pension. Her Honour also observed that the offer suffered from what she described as "another fatal defect", the fact that it was made only by the third respondent. Her Honour noted that claims for costs could have been made against the applicant by the two other respondents and that at the time the offer was made, the identity of the applicant's employer had not been established.

20 Her Honour also concluded that as the offer was not unconditional, it was not unreasonable for the applicant to refuse it.

21 At the hearing of the appeal, the employer accepted that the offer of compromise did not adhere to the requirements of the Court's Rules. That was undoubtedly so. It would not have properly permitted an order in accordance with the offer to be made, so as thereby to bring the proceedings to a conclusion (See Rule 168(9)).

22 Nevertheless, it was argued that Mr Pym should have treated the offer as if it were an offer of settlement put on a Calderbank basis and so should the Court. In the circumstances, an order for costs in the employer's favour should have followed.

23 In our view, there is a real difficulty in the defective offer of compromise made under the Rules, being treated as if it were a Calderbank letter. The two types of offer have significantly different consequences. We can see no ready basis for the creation of a new hybrid class. Nevertheless, the position was that Glynn J considered whether the applicant had acted unreasonably in refusing the offer, a question that arises for consideration when a Calderbank offer is made. We consider that her Honour's conclusion that Mr Pym had not acted unreasonably in refusing the offer, was open on the evidence, which showed that the verification required under the offer in respect of the shortfall in the UK pension was not readily available and even that provided was not acceptable to the employer, notwithstanding that the calculation of the shortfall came from one of the other respondents. Even at the hearing of the appeal, that matter was not resolved between the parties, notwithstanding that the employer accepted its contractual obligation to make up the shortfall. It insisted that Mr Pym should provide verification of the amount, before it met that obligation.

24 In those circumstances, we are satisfied that the public interest test was not satisfied in relation to the employer's appeal. Leave to appeal is therefore refused.

25 Mr Pym complained that Glynn J had ordered that only 30% of his costs be paid by the employer. The employer complained that any costs orders had been made against it. Her Honour's conclusion rested on the view that Mr Pym had failed to make out the substantive issues pursued in his summons, apart from one aspect of the claim made in relation to bonus. Money orders of $790,000 plus interest were sought. The order made was for the payment of $20,682.60, including interest.

26 We are again satisfied that the public interest test was not met in relation to this aspect of the appeals, other than in relation to the question of the UK pension claim, which we will deal with below. The conclusion reached by Glynn J was otherwise properly open in the circumstances and involved no error in the exercise of discretion. Nor did it involve a departure from principle. It is well settled that in some cases, applicants successful in only limited aspects of their claims may see that result reflected in costs orders made in their favour. (See for example Gambotto v John Fairfax Publications Pty Ltd (2001) NSWIRComm 249 and Kennedy v Northern Sydney Area Health Service (2003) NSWIRComm 75). This was such a case.

27 Leave to appeal is accordingly also refused as to this aspect, other than in relation to the UK pension fund claim.

28 After the hearing the parties further investigated the position in relation to Mr Pym's UK Pension Fund entitlements. The parties agreed that the Appeal Bench should be asked to receive further evidence, which they had each filed about that situation. Having considered what the parties each advanced in the affidavits and submissions filed, we are satisfied that the power granted by s191(2) of the Act to receive such evidence must be exercised in this case, even though that is not a course which the Court will lightly take.

29 Mr Pym's evidence was that his own contact with the UK Pension Fund had resulted in advice that the Fund could not inform him whether the contributions paid to it by the employer had been correctly calculated. The information necessary to verify such calculations had to be provided by the employer. If there had been an underpayment, the consequence for him would be that the pension which he would receive in future would be reduced. It was also possible that it would be too late for any shortfall to be made up, because of applicable time limits on the making of contributions to the Fund.

30 The employer's evidence was that employers in the UK have legal obligations to submit end of year reporting certificates to the Inland Revenue. The certificates provided for 1994/5 and 1995/6 revealed that there had been no contributions made in respect of Mr Pym in either year. Despite this, the employer refused to make further contributions, maintaining that if it were provided with independent verification of a shortfall, it would make a necessary adjustment.

31 The evidence before Glynn J showed that the employer had agreed to ensure that it maintained Mr Pym's pension payments 'or equivalent' during his secondment. The contract imposed no obligation on Mr Pym to verify what contributions the employer was required to make, or to take steps to ensure that the employer in fact made the requisite payments. During his employment in Australia, deductions were made from Mr Pym's salary, for remission to the UK for payment, together with the requisite employer contributions. There were persistent difficulties with the payments actually being made, which the employer acknowledged during the course of the employment, when various steps were taken to address deficiencies.

32 Eventually the employer refused to accept the calculations which had been made by its UK counterpart as to the contributions due and insisted that Mr Pym obtain third party evidence from the UK government, of the shortfall in payments it had made.

33 It was argued for Mr Pym that on the evidence before her, Glynn J correctly concluded that there were outstanding amounts, given that deductions had been made from Mr Pym's salary and not remitted. In the course of the proceedings, $25,000 was put in trust by the employer in respect of that shortfall, pending Mr Pym obtaining the required verification. In those circumstances Glynn J refused a finding of any unfairness in the contract, which it was submitted, involved appealable error, as did the refusal to gross up the amount owed for the UK national insurance, money outstanding over a period of seven years. The Court had no power to require the necessary contribution to be made now, in order that the detriment suffered by Mr Pym be remedied. There was no evidence that such a payment could be accepted by the UK pension fund in any event.

34 It was further argued that the finding that the employer's conduct had not rendered the contract unfair in the circumstances was in error, particularly given that the evidence now before the Appeal Bench showed that the employer made no contributions at all for two years. Further leave to amend the cross claim in this respect was sought.

35 The result was submitted to be a total loss of $30,971.63, which it was accepted 'might be reduced to $25,000 to allow for the benefit of the receipt of the money immediately'.

36 It was submitted that the operation of the contract demonstrated its unfairness, even if the conduct amounted to a breach of the contractual obligation. (Westfield Holdings v Adams (2001) 114 IR 241). The absence of a contractual mechanism for determining what amount was due and that it was paid, showed the unfairness of the contract. Withholding information necessary for an employee to obtain a benefit also amply revealed the contractual unfairness.

37 For the employer it was argued that leave to further amend the claim would not be granted at this stage of the proceedings, particularly given the judgment of the Court of Appeal in Sydney Water Corporation Limited v Industrial Relations Commission of NSW [2004] NSWCA 436. This would amount to a re-opening of Mr Pym's case being permitted, a power to be exercised cautiously, requiring that Mr Pym establish circumstance such as fraud, mistake or the party not being heard. (See Vasile Nan v Andreas Van den Berg and Ors [2004] NSWIRComm 361 and Gregory John King v Cake It Away Pty Limited [2004] NSWIRComm 377.)

38 It was submitted that on the evidence, the claim was, in reality, one for damages for breach of contract and thus not within the Court's jurisdiction under s106. Even if this submission were rejected, it was argued that no error of the necessary kind had been revealed in Glynn J's judgment. The placement of monies in trust by the employer amounted to no implied admission of unfairness, but rather a practical mechanism, designed to ensure compliance with the bargain, once Mr Pym had provided the requested verification. Nor was there evidence of any shortfall.

39 The starting point for a consideration of this aspect of the appeal is the amended summons on which the applicant moved before Glynn J. There the applicant sought orders varying the contract of employment, amongst other things, to require the employer to make monthly payments to the applicant's national insurance and pension plan. $17,288 loss of United Kingdom national insurance benefits was claimed. Glynn J observed at [70] to [73]: 70 The applicant claimed that a particular point of unfairness was that the sum of $37,931.85 had been deducted from the amount of termination pay in relation to "superannuation contributions made by Oracle (per Alex Grinberg's email)". 71 The background to that deduction is that in June 1992, when the applicant took up his position with Oracle Asia Pacific, Oracle UK, who had originally employed him, agreed to continue to maintain his membership of the UK Company Pension scheme on his behalf, as well as National Insurance payments, during his assignment in Australia. These contributions were set at a percentage of his UK notional salary: Employer contributions to Company Pension Scheme 8% Employer contributions to National Insurance 10.4% 72 Contributions were also made by Oracle Australia to its superannuation fund, at the rate of 10% of his Australian base salary. 73 To correct the inequitable situation where Oracle was funding contributions to both the UK and the Australian plan on his behalf, the applicant had agreed that, on his permanent return to the UK, he would repay to Oracle Australia the accrued benefit arising from the contributions the Company had made into the Australian superannuation fund. (It would seem that that agreement was made on the initiative of the applicant himself.).

40 At [77] her Honour found that this aspect of the payment made to the respondent on termination was not unfair and the claim for additional redundancy pay was rejected. At [89], her Honour said: 89 I note that although that evidence is that payments due to the applicant's UK pension fund had been rectified, the issue of the claimed loss of UK pension benefits was being pursued in these proceedings.

41 The claim in relation to UK Pension Fund was dealt with by her Honour at [200] to [205]: 200 It was common ground that Oracle was to continue to pay the applicant's contributions to his National Insurance and UK pension scheme while in Australia. 201 The contributions were deducted from the applicant's salary, by way of salary sacrifice, but there were problems in transferring those payments to the correct accounts in the UK. The result was that there is still an outstanding amount to be transferred. 202 Oracle recognized the problem and has requested the applicant to get third party evidence from the UK Government setting out the amounts payable. The applicant had not yet been able to assemble the required information. He understood that Oracle had been faced with exactly the same difficulty, but did not understand why Oracle had not accepted the calculation of the amount made by its UK finance controller. 203 It is common ground that KPMG Legal have the sum of $25,000 in its trust account for the applicant's benefit in the event that independent verification is provided of the shortfall, if any, in the applicant's UK pension fund. 204 If there is an amount owed in relation to the applicant's UK National Insurance, that amount will be a specific figure. There is no reason to gross it up as claimed by the applicant. 205 I do not see that the respondent's conduct on this issue is such as to cause the applicant's contract of employment to become unfair in terms of s 105.

42 The conclusion that the respondent's conduct was not such as to cause the contract to become unfair, plainly rested on the evidence that deductions had been made from the applicant's salary and that money, together with employer contributions, had been paid to the UK pension scheme by the employer and that while there were contributions outstanding, steps were in hand to establish what amount was involved, so that the payments could be made from the moneys held on trust.

43 On appeal, the evidence showed quite a different picture. While deductions were made from Mr Pym's salary, payments to the UK pension scheme were not made at all during the last two years of the employment. The agreement made by the parties in relation to repayment of contributions made by the employer to its Australian superannuation fund, rested upon a false understanding, so far as Mr Pym was concerned, exacerbating the unfairness visited upon him as the result of the employer's failure to make contributions to the pension fund. Had he been informed of the employer's failure to make such contributions, he is hardly likely to have agreed to an adjustment in relation to superannuation.

44 The evidence as it now stands, cannot permit the conclusion that the employer's failure to make the necessary contributions resulted from the difficult nature of any calculations required under the parties' agreement, having regard to Mr Pym's 'notional UK salary', or that the employer's conduct was not unfair. Undoubtedly, that conduct amounted to a breach of the employer's contractual obligation. How, in those circumstances, it could still persist with its position, that Mr Pym should obtain independent verification from the UK Pension Fund, of what payment it should have made under its contractual obligations to Mr Pym, is incomprehensible, particularly given that it accepted that should it be supplied with such information, any shortfall would be paid. Indeed the evidence led by the employer was that it, too, had been unable to obtain such information from the UK Pension Fund.

45 Having this situation in mind, it becomes clear that the claim cannot be dismissed as one involving merely a complaint as to breach of contract and a consequential claim for damages. We are well satisfied that it is necessary to permit Mr Pym to amend his summons, to advance a claim in relation to Pension Fund contributions, given what has now been revealed in the evidence. The circumstances are plainly exceptional, with justice requiring that Mr Pym be heard in relation to the true circumstances, which the evidence led by the employer before the Appeal Bench has revealed for the first time.

46 The evidence now before the Appeal Bench is entirely different to that before Glynn J, where the employer did not put the correct position before the Court. Not only was the trial judge misled at the hearing, so was Mr Pym during his employment and in the negotiations when his employment came to an end. Undoubtedly that also had an important consequence in these proceedings, at the conciliation stage. The information as to what the employer had done in respect of the Pension Fund contributions, was only in its hands. That the contract failed to require the employer to make the agreed contributions to the UK Pension scheme, at regular intervals given that time limits upon receipt of such contributions exist, was plainly unfair. That unfairness was exacerbated by the fact that the employer retained these moneys in its hands and was not obliged to reveal to Mr Pym what it had done, or even to provide him with information as to how it had calculated what it was obliged to pay.

47 These contractual deficiencies then also permitted the result, where Mr Pym proposed and the employer accepted, on termination, that he repay the contributions made by the employer to the Australian superannuation fund, having regard to the payments made to the UK Fund. The employer deducted this sum from the payment made to Mr Pym on termination. Mr Pym complained about this in the proceedings. Glynn J did not find this unfair, undoubtedly given the set off nature of the arrangement. What has now been shown however, is that the employer did not reveal either to Mr Pym or to the Court, that it had for two years made no contributions at all to the Pension Fund. It was hardly entitled to any set off, in those circumstances, as a matter of any fairness in the parties' respective positions.

48 The evidence now shows that terms which the parties had agreed in relation to the Pension Fund contributions, were entirely inadequate and unfair. The contract involved deductions being made from Mr Pym's salary, in respect of his own contributions; it did not, however, require that those contributions or those of the employer, be paid regularly to the Fund; that Mr Pym be informed of what contributions had been made and when, or how they had been calculated. The employer even appears itself to have failed to maintain adequate records as to what it had done, when or why. It remains either unwilling, or unable, to take the necessary steps to satisfy itself as to what its contractual obligations are and to meet them. If this difficulty flows from the nature of the calculation involved, which we observe does not appear to be the case, given that the employer had in fact received advice from its UK counterpart as to what it owed, the unfairness of the contractual term would thereby have only further been revealed.

49 In those circumstances, to continue insisting, even before this Appeal Bench, that Mr Pym obtain verification from the Pension Fund, as to what the employer should have contributed, before it makes any payments to Mr Pym, is entirely unconscionable and well demonstrated the unfairness of the contract upon which that attitude rested.

50 As Mason P observed in Sydney Water Corporation, it has long been recognised that what a contract permits, or does not proscribe, may make the contract relevantly unfair under s106. (See at [32] to [33] referring to the observations of Sheller JA in Walker v Industrial Court of New South Wales (1994) 53 IR 121 at 149.) This is a classic example of that kind of situation. The contract did not require regular contributions to be paid by the employer. It permitted the employer to entirely conceal from Mr Pym what steps it was taking to meet the contractual obligation. He had no contractual right to be provided with information about this aspect of their arrangement. Nor did the contract preclude the employer from insisting that Mr Pym obtain verification from the UK Pension Fund as to what contributions it should have made - on the evidence, a requirement impossible for Mr Pym to comply with.

51 On the evidence the contract was undoubtedly unfair in relation to these matters. It follows that justice requires that Mr Pym be granted relief accordingly.

52 Mr Pym's recalculation of what was outstanding amounted to $30,971.63. The calculation included account being taken of the fact that the order sought requires payment of a sum to Mr Pym, rather than to the Pension Fund, which has relevant tax consequences. Mr Pym's evidence was that his advice from the Fund was that there are time limits upon the making of contributions and that the employer's failure to make them, will affect the amount of pension which he will later receive. The end result is that the consequences of the Court's order cannot put Mr Pym into the position he would have been in, had the employer made necessary contributions to the Pension scheme at the proper times. We are satisfied that account must be taken of this in the money orders which we propose to make, although we take note of Mr Pym's concession that a money order of $25,000 would achieve justice in the circumstances. In all the circumstances, it is not just to hold Mr Pym to this concession.

53 While the employer resisted the making of money orders greater than the sum claimed in the original summons, no submissions were advanced as to the calculation of the sum pursued by way of amendment. We are satisfied that the sum claimed is just in the circumstances. We also take the view that interest should be ordered on that amount from the date of termination of the employment. This balances the fact that the employer has had the benefit of the moneys from well prior to that date, but also takes account of the fact that these proceedings were not commenced until some time afterwards.

54 We also take the view that the costs orders made by Glynn J as to the proceedings below must reflect what developed on appeal as to this aspect of the claim. In our view, the costs ordered in favour of Mr Pym must be increased to 40%, in order that justice be achieved as between the parties.

55 For all of the reasons given, leave to appeal is refused in each case, other than in respect of Mr Pym's appeal against the refusal of the claim relating to the Pension Fund contributions and the resulting costs order. Leave to appeal is granted as to those matters and the appeal upheld in those respects.

56 The contract is found unfair and varied ab initio to require the payment of pension contributions on a monthly basis, with the employer thereupon providing to Mr Pym information as to the basis of the calculation and details of the payments made. The employer is ordered to pay Mr Pym the sum of $30,971.63, plus interest calculated in accordance with the Supreme Court Rules from the date of termination of employment to the date of this judgment, in connection with the contract so varied.

57 By consent, the employer is ordered to bear Mr Pym's costs of the motion dismissed by Glynn J, as agreed or assessed. The employer is also ordered to otherwise pay 40% of the costs of the proceedings before Glynn J, as agreed or assessed. Given the results on appeal, we have concluded that the proper order as to costs of the appeal proceedings is that the employer pay 50% of Mr Pym's costs, as agreed or assessed, this achieving a proper balance between the parties, given the outcome of the appeal proceedings. We order accordingly.

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