Samantha Salamon v TAB Limited

Baker v National Distribution Services Ltd (1993) 50 IR 254 Bennett v BP Australia Limited (unreported, No. 632 of 1983, 28 March 1984) CASES CITED: BP Australia Ltd v Klepat Pty Ltd (1982) 2 IR 352 Hammond v Manildra Flour Mills Pty Ltd [2003] NSWIRComm 64 Jones v Dunkel (1959) 101 CLR 298 Steman & Salamon [2004] NSWIRComm 1126

HEARING DATES: 03/04/2006, 04/04/2006, 05/04/2006, 06/04/2006, 18/04/05, 26/04/2006

APPLICANT Mr R de Meyrick of counsel Solicitor: Mr G Watson T D Kelly & Co LEGAL REPRESENTATIVES:

RESPONDENT Mr J V Murphy of counsel Solicitor: Mr N Stevens Stevens & Associates

Application under section 106 of the Industrial Relations Act 1996

1 Samantha Salamon is the applicant in these proceedings (since the proceedings commenced, Ms Salamon changed her surname to Ezekiel but this judgment will maintain the reference to Salamon). Ms Salamon was appointed as an agent for TAB Limited ("the respondent") in April 2003 to operate the Jannali TAB agency. 2 On 14 April 2004 the respondent terminated the Agency Agreement with Ms Salamon for what it regarded as breaches of the Agreement. Ms Salamon subsequently commenced proceedings against the respondent pursuant to s 106 of the Industrial Relations Act 1996, claiming that the Agency Agreement was an unfair contract. Ms Salamon sought orders to the following effect: (1) An order declaring the Agency Agreement void in whole or in part either from its commencement or some other time; (2) Further, in addition or in the alternative, an order declaring that the Agency Agreement was unfair, harsh or unconscionable and/or against the public interest. (3) Orders varying the contract in certain material respects to avoid the unfairness alleged; (4) An order that the respondent pay to the applicant the following monies in connection with the Agency Agreement declared wholly or partly void or varied: (a) Payment in relation to the balance of the period of the Contract to 13 September 2004: $53,750.00 (approx). (b) Payment in relation to loss of opportunity to derive benefit from the ongoing operation and/or roll over of the Contract (i.e. a further period equivalent to the term of the Contract): $182,750.00 (approx). (5) Interest. (6) Costs. Appointment of applicant as TAB agent

3 Ms Salamon was 25 years old at the time her Agency Agreement was terminated. From 1994 to 1996 she was employed on a part time basis at the Bondi Beach agency of TAB. From 1996 to 2003 she was employed at the Bondi Beach agency as an agent's relief working approximately 30 hours a week. During this time she also worked part time at the TAB agencies at Crows Nest, Belfield, Maroubra, Botany and Bondi Road as an agent's relief. 4 During 2002, Ms Salamon worked at the TAB head office for approximately six months as a race day operations meeting co-ordinator. This involved processing race-day scratchings, rider/driver changes, various accounting procedures, monitoring two race meetings at a time, which included closing each race and declaring dividends after the all-clear was given from racing authorities in all States. Ms Salamon worked in this position 21 days per month. 5 Having made an unsuccessful application for appointment to the Bexley TAB agency in early 2003, on 28 March 2003 Ms Salamon was appointed the TAB agent for the Jannali agency. She signed the Agency Agreement on 15 April 2003 and took over the running of the agency on 17 April 2003. Prior to taking over the agency the applicant paid a security deposit to TAB in an amount of $5,000.00. The Agency Agreement

6 The Agency Agreement, formally titled "Agreement to Appoint Agent to Provide Wagering Services", was a comprehensive contract of some 29 pages, 35 clauses and six schedules. The Agreement provided, inter alia: (a) That it would operate to 30 September 2004; (b) That it was terminable by notice given one month before 30 September 2004 but if notice was not given it would continue until terminated; (c) The relationship between the TAB and agent was one of principal and agent and not employer and employee; (d) TAB's obligations under the Agreement; (e) The agent's obligations under the Agreement, which included that the agent: "abide and comply with TAB's policies and procedures in force from time to time by TAB…"; " Be of good character and reputation and not indulge in unethical or reprehensible conduct during the term of this agreement whether in the operation of the Agency or otherwise…"; and that, "All deficiencies in money received by the Agent must be properly recorded and promptly reported to TAB." (f) That the agent was to comply with TAB Compliance Policy including that the agent must not engage in credit betting; (g) That the agent must comply with any communications manual, operations manual, policy manual, training notes, and any other manuals or instructions issued by the TAB to its agents from time to time; (h) That the agent was to employ staff; (i) Receipt of monies; (j) Banking; (k) Care of facilities, services, equipment, premises and materials; (l) Security; (m) Liability of the Agent; (n) Termination by TAB. The TAB may at its option at any time and without notice terminate the Agreement and the Agency without prejudice to any remedy the TAB may have against the agent and no compensation will be payable to the agent if the agent, inter alia , "fails to comply with Manuals, operating procedures and administrative systems determined by TAB". (o) Termination by agent; (p) Restraint; (q) Dispute resolution; (r) Agent's Commission (Schedule 6).

Other TAB policies and procedures 7 The TAB operated an intranet facility called "TAB on Tap" that provided all TAB agents with information that would assist with the operation of their agencies. In particular, "TAB on Tap" contained cash control procedures and cashier responsibilities. Such cash control procedures stated: Cash is not to be held on a customer's behalf to cover future bets. Also, tickets are not to be held on a customer's behalf prior to the running of a race on which that ticket relates. 8 "TAB on Tap" also contained the procedures for cash errors. Such cash error procedures stated: Note: Concealment or manipulation of Cash Overs and Unders will render ALL persons concerned liable to immediate dismissal and/or termination of the Agency Deed as applicable.

The cash error procedures also stated: Cash Overs and Unders in excess of $200 are to be reported to SOS on 131 785 - at the time they are incurred. Any large Cash Overs or Unders may be subject to Audit investigation. 9 TAB Agencies were supplied with the "TAB Cash Office Manual", in hard copy form. The Cash Office Manual also referred to Cash Overs and Unders: Concealment or manipulation of Cash Overs and Unders will render ALL persons concerned liable to immediate dismissal and/or termination of the Agency Deed as applicable. 4. On 4 April 2003, together with her appointment letter, Ms Salamon was sent a document entitled "Chief Executive's Warning for Agencies", which was released by the Chief Executive Officer - Wagering in August 2002. The document stated: Permitting customers to credit bet… fraud, dishonesty, betting on duty… are breaches that could lead to disciplinary action...

Agents and Agents Reliefs are not permitted to place bets at Agencies under their control at any time… On duty means during the period or periods where Agency staff are performing their normal work…

BE WARNED credit betting…fraud, dishonesty, betting on duty… can result in… disciplinary action leading to an individual's termination, action leading to the termination of the Agency deed.

This warning applies to all Agents, Agents Reliefs and Agency Staff. 10 In or around July 2003, Mr Grant Goldsworthy, the respondent's Retail Manager - Agencies, had cause to prepare a document entitled "Certificate by Agents". The document stated: I have read the 'Chief Executive's Warning for Agencies' on betting by Agents and undertake not to bet in my Agency at any time. Ms Salamon executed a copy of the Certificate on 24 July 2003. Improvements made to Jannali agency by the applicant

11 Ms Salamon's evidence was that when she took over the running of the agency it did not cater for the sports/racing punter. The agency, she said, was run down and looked very dirty. The applicant made a number of changes to the agency at her own expense in the first four to five months including: (i) Replacing the televisions with 23 new small flat screen televisions and two large flatscreen monitors; (ii) Installing Quiktext which is a monitor which displays sports pricing and racing dividends; (iii) Installing TABView which is a monitor which provides customers with a detailed form analysis with the ability of allowing customers to set up their own systems for picking winners; (iv) Installing a coffee machine; (v) Purchased new tables and chairs and changing the seating arrangements so that customers could view the monitors. 12 In addition, Ms Salamon stated that she undertook a number of promotions at the agency including the following: (i) When I first commenced at the agency I had a "New Agent" promotion. This involved a week long promotion where customers who placed bets over the value of $50.00 went into a draw to win various racing memorabilia and photographs which I had purchased from News Photos and had framed myself. I purchased 16 photographs and frames at an approximate cost of $60.00 each.

(ii) My staff and I wore uniforms (being the TAB logo shirts with black pants and name badges) which I purchased from INCK Merchandising. The approximate cost was $75.00 per staff member.

(iii) For the Melbourne Cup in 2003 I provided lunch for customers which included six trays of sandwiches, soft drinks and sweets as part of dressing up the agency for the day.

(iv) When Fixed Odds betting on all Group races began I held a "Fixed Odds Promotional Weekend" from 22 May to 26 May 2003 which coincided with the New South Wales Paces Derby and Doomben Cup. For every Fixed Odd bet over $30.00 customers would receive three free "Take a Punt" scratchies lottery tickets.

(v) I placed a signboard at the front of the agency on the footpath which read "Welcome to Jannali TAB" with the TAB logo on it. On this board I outlined all the promotions as well as Fixed Odds prices for the racing and sporting events for the week.

(vi) I participated in all TAB generated promotions. This included the opportunity for customers to win a framed photograph of the Australian Wallabies and British Lions Rugby teams. Laserstick tickets were handed out to customers who had Sports TAB bets on the Rugby Union. The Laserstick tickets had the first try scorer printed on one side and the customer who had the winning ticket would win the photo. No one at the agency had the correct ticket so I ran a second draw with the losing tickets that customers brought back in.

(vii) I joined the promotions fund run by TAB with a group of agents who elected to take part. Each week $10.00 was taken out of my commission which went into the fund. From this money TAB would on approximately two occasions per year run a promotion such as the Rugby Laserstick promotion.

(viii) I ran a football tipping competition each season.

(ix) In early July 2003 I ran a "Survivor Accumulator Competition". An accumulator is a type of bet that is run by the TAB where customers can roll over their sports bet, for example one game going into another of the same sport such as soccer. Customers had to pick a sporting event with three games over the weekend and start with a $5.00 bet. The amount which was won was recorded and the customer would do the same thing the following week. The last customer winning would also win a sports pack containing Premier League Soccer products to the value of approximately $300.00.

Ms Salamon said by the second half of 2003 the Jannali agency was in the top ten agencies for increases in sales. Incident on 13 March 2004

13 The incident that led to the termination of Ms Salamon's Agency Agreement occurred on Saturday 13 March 2004. Ms Salamon said the Saturday was one of the busiest days of that week: Saturdays are usually the busiest day as there are a number of races held on that day but more so because it was the Canberra Black Opal Carnival. I was on duty myself with Catherine Zigas. 14 Ms Salamon described the incident as follows: On the afternoon of 13 March 2004 and after 2.00 pm I had a conversation with a regular customer who I knew only as "Gary" in which words to the following effect were said: Gary said: "I've got a winning ticket. I have scanned it but it has not been paid out." I said: "Are you sure you scanned it? Where is your ticket?" At the time of this discussion the agency was very busy and I was dealing with more than one customer simultaneously. Gary became agitated and starting yelling at me. Gary said words to the effect: "I've got a winning ticket and you have not paid me." I said: "What were your betting details?" Gary gave me the details of his bet and I checked that information against the results on a terminal. I recall vaguely that I had taken a bet from Gary earlier than day, so I then paid him an amount being approximately $1,145.00 which equated to the amount that was payable on the bet Gary stated was placed. 15 Later that afternoon Ms Salamon said she did a balance of the cash and in the process became aware of the existence of a "cash under" of approximately $1,145.00. Ms Salamon explained: In doing a balance of the drawer I obtained an Operator Cash Balance from the terminal that would give me the exact amount of money I should have in the drawer. As soon as I became aware of the cash under I immediately did a balance of the safe to make sure the money had not accidentally been put into the safe without the appropriate accounting transaction being done. I obtained the amount that should be in the safe from my opening Cash Distribution card and simply added my cash progresses for the day in order to get the figure of the amount that should be in the safe. 16 In the evening of 13 March the applicant undertook a search of the office at the agency in the attempt to locate money, which she said might have accounted for the cash under. The search involved going through the bins in the office space. Ms Salamon said: Since the customer (Gary) was sure he scanned the ticket I checked the bins to see if I had thrown the ticket in the bin after it was scanned. It has happened in the past that when a ticket is scanned it makes the usual beeping noise but for one reason or another does not process the ticket. If I had found that ticket and scanned it there would have been no cash under to record. 17 The applicant stated that later in the evening of 13 March she completed the Cashier's Summary. This is a document that is completed daily and maintained at the agency. In explaining the figures on the Cashier's Summary, Ms Salamon said: (i) I took the figures from section A which are generated by the TAB computer. In this instance the printout from the computer stated that the "office liability" is $27,279.47 being the amount that should be in the agency safe;

(ii) However when I did the balance by counting the cash drawer I was $1,145.00 short against the figure shown on the TAB terminal being $27,279.47;

(iv) Instead of writing in the actual cash being the total of the cash in the draw and the safe in section D of the document I wrote in the figure from Section A rather than record the discrepancy in Section D, in the section "authorised variations". 18 The applicant said she completed the Cashier's Summary in this way because she was still unclear as to what had happened. She said it was late on Saturday evening; it had been a very busy day and she wanted to look at the issue the following day. Ms Salamon said it was easier for her to take the figures on the cash distribution print out and put them in Section D of the summary so that the closing total matched the opening total. She said if she found the missing ticket the following morning she could then scan it, which would mean that she would balance. Ms Salamon noted the Cashier's Summary was maintained in the TAB agency and not sent to anyone else within the organisation. 19 In further explanation of her actions Ms Salamon stated: I did not report the cash under that evening to the TAB head office for the reasons identified above, and in particular because it was still not clear to me why a cash under had occurred and if in fact there was a cash under or simply an accounting or reconciliation problem. Because I was uncertain as to what had occurred I decided that whilst I investigated what had happened I would make good the amount by withdrawing cash from my Credit Union account over two days. I needed a period of two days because I understood that my daily withdrawal limit is $550.00. As such on the evening of 13 March 2004 I placed a cheque in the safe in the amount of $595.00 to partly cover the apparent cash under. (In this respect I note that it was my understanding that to the extent that cash unders arise it was the responsibility of the agent to repay these amounts.) The cheque I wrote was dated February 2004. This was the next cheque in my cheque book. In February 2004 I was on holidays on the Gold Coast. I had attempted to pay for my accommodation by cheque. After dating my cheque I was informed that the place did not accept personal cheques. When I wrote out the cheque on the evening of 13 March 2004 I did not notice the cheque was already dated. 20 The applicant said she closed the agency at approximately 9.30 pm on Saturday 13 March 2004 and intended to withdraw $550.00 the following day, Sunday 14 March 2004. Sunday 14 March 2004 21 On Sunday 14 March, Mr Matthew Mather and Mr Phil Jeff, two of the respondent's operation support managers, visited the Jannali agency. The responsibility of an operations support manager included investigation of fraud, cash unders, credit betting, customer complaints, occupational health and safety, security and monitoring unusual sales activity. 22 A conversation occurred between Messrs Jeff and Mather and Ms Salamon the contents of which were disputed. Ms Salamon stated that as soon as Mr Mather and Mr Jeff arrived in the agency she let them into the office and then had a conversation in which she informed them of the events of the day before. Ms Salamon said in her evidence: To this extent I recollect we had a conversation using words to the following effect: I said: Yesterday we had a payout under unusual circumstances. Basically I overpaid a customer $1,145 and I am in the process of sorting it out and working out where I went wrong. I was just about to withdraw $550.00 from my Credit Union to make good the cash under while I try and sort out how it occurred. I also put a cheque in the safe last night to cover part of the amount. 23 The recollection of Mr Mather and Mr Jeff was that after some small talk they advised Ms Salamon they were at the agency to conduct a cash count. It was after that, they said, Ms Salamon advised them of what had occurred the previous day. 24 After providing this information Ms Salamon recounted what then occurred: Mr Mather then gave Mr Jeff a grin and told me: "You have just made things ten times worse for yourself." Mr Mather then said: "You have not followed the correct TAB procedure. The cash under should have been reported on the day." I said: "I didn't report it because I am still in the process of working out how it occurred. It must be somewhere I have only just opened and haven't had a chance to find out what happened." Mr Jeff said: "Just prepare a report and send it to my email. Everything should be alright after that." Mr Mather then left the agency and went to his car. I observed him use his mobile telephone. I said to Mr Jeff: "What is going to happen to me from here?" Mr Jeff said: "In worse case scenarios we would close the agency and you would be suspended pending an investigation but this appears to be an honest mistake so once you send us your report we will be able to help you work out what happened." Mr Mather returned and said: "I have spoken to Malcolm Hunter and you won't be suspended but you are required to prepare a report and send it to Mr Jeff".

25 The accounts of Mr Mather and Mr Jeff as to what occurred on 14 March were different to that of Ms Salamon. Mr Mather's evidence was as follows: I do not agree with Ms. Salamon's recollection of the conversation Mr. Jeff and I had with Ms. Salamon. We made "small talk" between the three of us for a period of time. It was some time after Mr. Jeff and I entered the Agency that I recall either Mr. Jeff or myself stating, with words to the effect of: "We are here to perform a Cash Count." Ms. Salamon advised us of the following after we advised of the cash count: "I'm $1,100.00 short, possibly a little more. One of my staff members did the payout. One of the customers said he didn't receive the cash and got quite loud and demanded his cash. I decided to pay the customer the money to appease the situation. I asked him for his phone number, just in case there was a problem. He was a regular customer named Gary. Later on, when the staff went, I balanced up and found that there was cash short." Ms. Salamon then said: "I placed a cheque in the safe yesterday for $595.00 to cover the amount and I was going to withdraw it from my account using EFTPOS to cover the $550.00 shortage with the Operator Liability." I recall Ms. Salamon not voluntarily informing us of the cash shortage I upon Mr. Jeff and I arriving at the Agency. Ms. Salamon stated words to the effect of: "I did not declare it as I want to become a Multi-site Agent. I thought it would reflect poorly on myself." I stated words to the effect of: "You haven't declared the cash shortage, and you haven't reported it to SOS. You haven't followed the correct TAB procedure. The cash shortage should have been processed and reported on the day and by not following TAB procedures you have made things worse for yourself. Procedures are put in place for a reason and when they are not followed it doesn't reflect well… You have also falsified the Cashier's Summaries." Mr. Jeff and I then went and performed a full Cash Count, which meant we counted the money both in the safe and the window. After completing the Cash Count, we found that there was an Operator Liability cash shortage of $549.95 and that the safe was $595.00 short. Mr. Jeff and I processed accounting transactions for both amounts. We then asked Ms. Salamon to sign accounting receipts to verify the shortages. I recall Ms. Salamon signing the accounting receipts. While conducting the Cash Count, I recall seeing a cheque in the safe, dated 28 February 2004. I recall writing down the details of the cheque, including the Cheque Number and date. I said to Ms. Salamon words to the following effect: "Can you explain why the cheque is dated 28/2/04?" She said: "I was on holidays at the Gold Coast at the time and went to pay for the accommodation with the cheque. The lady said that they took credit card, not personal cheques. I had started to complete the cheque and wrote the date on the cheque but that was all. I then used the cheque yesterday and made it out to Tab Limited for $595.00. I assure you, it was written yesterday, and not on the 28th of February." I said: "Why hasn't an EFTPOS withdrawal been actioned for the $500 today?" She said: "I arrived at work late at 11am and a customer came in with a dog and I organized a bowl of water for it in the public space. I've been chatting with customers as well. " I said: "I need to make a phone call." I then went outside to my car, plugged my mobile phone into the car kit and telephoned Mr. Malcolm Hunter, Audit Manager of TAB. I said to him words to the following effect: "Phil and I have completed a cash count at Jannali and found the cash about $1150.00 short. A cheque was in the time delay compartment for $595.00 and the cheque was dated 28/2/04. The cheque was dated previously when the agent was on holidays. She went to pay for her accommodation by cheque and was advised she would need to pay by credit card. She had completed the date on the cheque and no other details" Mr. Hunter said: "Who is on duty?" Mr Mather said: " The Agent, Samantha Salamon" Mr Hunter said: "What do you think we should do?" Mr Mather said: "Considering the size of the shortage and the uncertainty over the cheque I believe she should be suspended pending an investigation. I believe that not actioning the shortage or reporting it to SOS give us the grounds to suspend her." Mr Hunter said: "I don't believe that is appropriate based on what you have told me. I believe the best course of action is to request a statement from Samantha and we will investigate it from there." Mr Mather said: "I'll go and have a talk with her." I then went back inside to see Mr. Jeff, who was with Ms. Salamon. I do not know what was said between Mr. Jeff and Ms. Salamon while I was gone. I went in and said: "I just spoke with Malcolm Hunter. We wont suspend you but we will need you to write a report outlining the events from yesterday and send it by email to Phil." Mr. Jeff then gave Ms. Salamon his business card. Mr. Jeff and I then collected a number of documents, being the Cash Count Reconciliation and the current and previous week's cashier summaries and left the TAB Agency. Mr. Jeff and I then traveled (sic) to Gymea and had lunch. After lunch we completed another Cash Count at the Gymea agency. Throughout the time I was at the Jannali Agency, I took notes of our discussions with Ms. Salamon on the back of TAB betting tickets and on paper. I then took all of the betting tickets back to the office that day, and completed an Incident Report, which I finalised at the TAB office on Monday, 15 March 2004... 26 Mr Jeff's recollection of events on 14 March was as follows: When we entered the Jannali Agency on Sunday, 14 March 2004, we spent a short time talking to Ms. Salamon about unrelated matters. We tend to do this to ensure that TAB Agents are put at ease. We also spend time looking at upcoming races, as indicated on the bottom of the Eureka terminal. This is so we can perform the Cash Count at a time where there is no betting activity. During our small chat with Ms. Salamon, and whilst we looked at the Racing Schedule, she did not raise the issue of the cash under from the previous night before. After checking the Racing Schedule, I said with words to the following effect: "We are here to conduct a Cash Count." I agree with Ms. Salamon's recollection of what she told us with respect to the cash under. I recall that Mr. Mather said words to the following effect: "Why would you have a cheque in the safe when it is clearly against Tab procedures?" Ms. Salamon said: "A regular customer named Garry was in the Agency on Saturday afternoon punting. He was served by the casual operator on duty at the time, and then begun accusing the operator of not paying him for his winning ticket/s of about $1,000.00 or more. He was loud, and was become threatening. I then made the decision to pay him but before I did, I asked him for his phone number. When I found the shortage, when I balanced after the casual operator left, I was going to withdraw some funds from my Credit Union account but there is a limit of $550.00 per day, so I placed the cheque in the safe to cover the difference." I do not agree that Mr. Mather gave me "a grin". Rather, Mr. Mather "grimaced". It was obvious that we would, as a result of what Ms. Salamon had said, have to conduct a further investigation into what had happened. This was going to have an impact on our day's schedule. I took Mr. Mather's reaction to be that of concern, given that a routine Cash Count had become an audit investigation. I also deny that I asked Ms. Salamon to prepare a report and send it to my email, prior to Mr. Mather leaving the Agency to talk to Mr. Malcolm Hunter, the Audit Manager. I strongly deny that I said that "everything should be alright after [Ms. Salamon gave a report to me] ." Mr. Mather and I had already identified a number of breaches of TAB Policy and Procedure. I would not have told Ms. Salamon that things were going to be "alright" because it was clear that Mr. Mather and I would have to conduct a further investigation. Mr. Mather and I then conducted a count of the cash. I agree that Mr. Mather went outside to make a call to Mr. Hunter. I recall Mr. Mather having to leave the Jannali Agency because mobile reception was always bad in the Agency. While Mr. Mather was outside the Jannali Agency, I recall Ms. Salamon being in the office area and take between three (3) to four (4) telephone calls. While she was having these telephone discussions, I read the Sunday paper which was on the desk. I did this because I did not want to conduct any detailed discussions with Ms. Salamon without a witness present. I deny that I said to Ms. Salamon that it appeared "to be an honest mistake", given that we had not even conducted an investigation at that stage. I recall Ms. Salamon said with words to the following effect: "What is going to happen now?" I said: "Your actions are against TAB procedures. It will be up to Malcolm Hunter to determine what's happened next. Malcolm could ask you to prepare a report, and even suspend you pending further investigation. We will be able to help you work out what has happened, but we will wait till Matt has spoken to Malcolm." I also said: "What happened when you called the customer?" She said: "The telephone number was of the hotel down the road and they knew who he was, they didn't know where he lived." Upon Mr. Mather's return, I recall Mr. Mather said: "You should prepare a report of the incident and actions of Saturday. It should tell us how much the shortage was, what terminal the shortage occurred, plus any other information you can give us that could help us to find out about the shortage. This will become part of the investigation. Put it in the report, and send it to Phil's email." I then gave Ms. Salamon my business card. I said: "The sooner you get that into us, the sooner we can get started on the investigation." 27 As requested, Ms Salamon prepared a report and forwarded it to Mr Jeff on 14 March 2004. Suspension of Ms Salamon 28 On Tuesday 16 March 2004 Ms Salamon said she received a telephone call from Mr Mather and a conversation ensued to the following effect: "I am at your agency now and I have just spoken to Ms Steman and taken a statement from her saying that there was a cheque in the safe while you were on holiday. I have to inform you now that you are suspended pending an investigation. You are required to hand over your keys and safe combination. Do you have anything that you want to tell me?" Completely stunned I replied: "What are you talking about? I think I should know when I put that cheque in the safe and it was on Saturday night so I don't know what Hina is talking about or what you said to her". Mr Mather said: "Is there anything that you want to tell me? I will give you my mobile number in case you think of anything else." I said: "There is nothing to tell you because that cheque was not in the safe prior to Saturday. Why don't you ring my other staff members who were working while I was away?" Mr Mather replied: "I have already done that and we are in the process of getting their statements." I said: "Finally you're doing something right." In a manner which I took to be condescending Mr Mathers said: "You have to bring your keys in as soon as possible and just so you know I have changed the combination of your P.I.R alarm so you won't ever be able to enter the agency without me here." The next day Wednesday 17 March 2004 at approximately 10.00 am I took my keys to the Jannali Agency where I had arranged to meet Mr Mather. I handed my keys to Mr Mather and collected some of my personal belongings and left the agency. Hina Steman and the coffee man's cheque 29 Ms Salamon referred to Hina Steman. Ms Steman was employed at the Jannali agency as a casual relief agent. She was working at the agency when Mr Mather called on 16 March 2004. Mr Mather asked Ms Steman about the cheque in the safe. Ms Steman indicated there was a cheque in the safe when she opened it on 2 March when Ms Salamon was on holidays. Mr Mather also asked Ms Steman whether Ms Salamon knew the cheque was in the safe. Ms Steman replied: Yes. I remember because Samantha asked me did I put the cheque in with settlement and I had said no - was I supposed to? Samantha said to me no as that was not an office cheque. 30 Ms Steman said Mr Mather then asked her to write a statement and sign it, which she did. She said the conversation with Mr Mather continued to the following effect: Mr Mather said: "Do you know how much the cheque was for?" I said: "No. I don't know what was written on the cheque or for how much because I did not look at it." I then said to Mr Mathers (sic): "The only cheque we get is from the coffee man "Michael" and that is probably what the cheque was for." Mr Mather said: "Did you do a safe count when you started that day?" I said: "No. I have not learnt how to do that yet." Mr Mather then explained to me the importance of counting the safe when one does a changeover from cashier. I said: "In future I will remember that." Mr Mather said: "Write down that you do not do a total count of the safe." He then handed me back the statement I had provided him. I did what I was told. Mr Mather then said: "Please sign it." 31 Ms Steman said she did not feel comfortable signing the statement because: [W]hat I wrote on it was not everything I told Mr Mather however I did sign it. 32 After signing the statement Ms Steman said she was advised by Mr Mather to the following effect: "Hina you are suspended because the cheque was in the safe. It is TAB policy that you are not allowed to accept cheques. Because you signed your cashiers summary on the 2nd of March and the cheque was in the safe it means you accepted the cheque."

Ms Steman said after she left the agency she was upset and crying. 33 Quite how the TAB was in a position to suspend Ms Steman, apparently an employee of Ms Salamon, was never explained. Ms Steman did bring an unfair dismissal claim against Ms Salamon and sought to name the TAB as the second respondent. In Steman & Salamon [2004] NSWIRComm 1126, McKenna C joined the TAB as a respondent and adjourned the matter into further conciliation. I understand that the matter was settled on undisclosed terms, with TAB being a party to the settlement.

34 Ms Steman also prepared two statutory declarations on 16 March 2004. The first declaration described in similar terms to her affidavit what occurred when Mr Mather visited the agency on 16 March but it also stated: I told Mathew [sic] that the cheque was from the coffee man Michael as he often leaves a cheque. Mathew then asked me if I count the safe when I come in. I said no I have only been here 3 months. Sam rang me on the 02.03.04 to make sure I did the settlement and to make sure the cheques wasn't deposited as it wasn't office cash so I knew it was Michael's the coffee man. Mathew rang Head Office & said there was a cheque but failed to say I said it was the coffee mans cheque. He made me write out a statement and sign it even though I knew it wasn't correct. I did not know what was going on and I felt I was being ... (illegible). 35 Ms Steman's second declaration stated: I felt intimidated & shocked & I felt liked [sic] I was being tricked. I thought I was in trouble because my husband was helping me set up. I felt Mathew wanted me to say what was on the cheque & I told Mathew again. I didn't know what was on the cheque but I knew it had to [be] Michaels the coffee man because he pays by cheque he always gives me the cheque & I put it in the safe. I didn't know it was anything other than the cheque I had put in the week before. 36 Mr Mather said in his evidence Ms Steman did not inform him that the cheque was from the coffee man and that she did not appear intimidated by his presence. Ms Steman agreed in cross-examination that after she had been suspended she said to Mr Mather he might have been hungry and suggested "there was a coffee shop down the road where he could buy something to eat while he was waiting to sort things out." 37 In relation to the "coffee man", Ms Salamon deposed that: During the period when I ran the Jannali agency I had an agreement with a person I knew as "Michael" who installed a coffee machine in the agency and would service the machine every week. As part of the arrangement with Michael every fortnight the agency would get a rebate paid by cheque on the cost of operating the coffee machine. I recall that in late January 2004 Michael delivered a cheque to the agency in the amount of $63.00. I placed the cheque in the agency's safe and it remained there until Friday 12 March 2004 when the cheque was banked with the ANZ Branch in Sutherland. So far I have been able to ascertain this is the cheque that Ms Steman was referring to in her conversation with Mr Mathers [sic]. Leslie Tobin 38 It is also to be noted that Ms Leslie Tobin, an employee of Ms Salamon at the Jannali agency, advised Mr Jeff in a telephone conversation on 16 March 2004 that there was no cheque in the safe on 28 or 29 February 2004. Ms Tobin had originally indicated she would make a formal statement but no statement was forthcoming. Catherine Zigas 39 On 22 March 2004, Catherine Zigas (the applicant's co-worker on 13 March 2004) wrote to Mr Mather regarding the incident on 13 March. In her letter Ms Zigas stated: · Samantha was dealing with a customer, a man who was stating that he had not collected his winnings but I did not pay too much attention to him...The customer was persisting that he had not collected his ticket so after Samantha went through checking previous transactions and other receipts she gave him the money.

· The next morning Samantha called me to see whether I thought I overpaid anyone and that she felt that the customer that made the fuss on the Saturday might have been paid twice accidentally since she counted the money at the end of the night and it was out of balance of about the same amount given to the customer. She told me that she wanted to pay for the difference from her own money because she could not work out what had gone wrong and needed time to work things out. 40 The letter was passed on to Mr Malcolm Hunter, who at the time was TAB's Audit Manager. Mr Hunter acknowledged receipt of the letter. Interview by TAB of Ms Salamon - 29 March

41 On 29 March 2004 Ms Salamon attended an interview at the TAB's head office in Ultimo, accompanied by her solicitor, Mr Steven Lewis. Present were Mr Malcolm Hunter and Mr Goldsworthy for the TAB. The interview was recorded and transcribed. 42 The transcript of the record of interview extended over some 48 pages. Ms Salamon was asked about the following matters: (1) Her knowledge of TAB's policies and procedures, especially cash control procedures and the prohibition against holding cash for customers and betting on behalf of customers; (2) The incident with Gary on 13 March 2004; (3) The cheque in the safe; (4) Footage from a videotape recorded on a CCTV located in the Jannali agency of certain events that occurred in the agency on 10 January 2004, in particular the presence of two men in the office area of the agency; (5) Footage from a second videotape recorded on a CCTV located in the Jannali agency of certain events that occurred in the agency on 4 February 2004, in particular footage of Ms Salamon placing bets after hours; (6) An incident at the Bondi Beach agency on 9 February 2003 when Ms Salamon, working as a relief agent was holding money for a customer and keeping a tally of wins and losses for the customer.

43 Following the interview, on 30 March 2004 Ms Salamon was requested to provide further information. Ms Salamon responded on 2 April 2004 and provided the following information: (1) A statement from the TAB Credit Union indicating that as at 14 March 2004 Ms Salamon had an available balance of $3,824.76 with a Visacard maximum withdrawal limit of $500 per day; (2) Confirmation of a cheque for $63.00 having been deposited in an ANZ account on 12 March 2004; and; (3) A statement of Jason Gale. Jason Gale 44 The statement of Mr Gale was to the effect that he had an arrangement with Ms Salamon whereby he would drop in an envelope to her at the Jannali agency containing an amount of money. During the day he would message Ms Salamon to place bets on his behalf. Mr Gale stated: There has been a time where Samantha has even stayed back so that I could have a last bet for myself or by my wife... My bets were always covered with the money I would leave with Samantha. 45 In connection with Jason Gale, Ms Salamon in her affidavit deposed as follows: Just after I took over the running of the Jannali agency I received a telephone call from Brian Smith who was the agent before me. We had a conversation to the following effect:

Mr Smith said: "Have you received a letter for me from the Tax Office?"

Mr Smith said: "Does Jason still ring you up?"

I said: "Yes." Mr Smith said: "Jason will never pull one over you. He is okay. He always has his money there."

I said: "Yes I know." Soon after taking over the Jannali agency I received a telephone call from a person who introduced himself as Jason and we had a conversation to the following effect:

Jason said: "Is it okay to bring money in? I will give you a call and tell you what to put it on. I did this with Brian for years and it was okay with him."

I said: "That's fine. But if the money is not here I wont do anything." 46 In a second affidavit Ms Salamon referred to a further conversation with Mr Smith in late April or early May 2003 as follows: Mr Smith telephoned the Jannali agency and I had a conversation with him to the following effect: Mr Smith said: "Can I speak to Grace?" I said: "She is not here. She only works Mondays and Tuesdays. Do you want me to leave her a message?" Mr Smith said: "Yes, let her know Brian rang. I'll ring her back when she is on. How are things going?" I said: "Yes fine. Mr Smith said: "Does Reg come in?" I said: "I don't know who Reg is?" Mr Smith said: "He's an elderly man and places $50.00 bets at a time. He's a skinny man who's got cancer". I said: "Oh yes, he still comes in". Mr Smith said: "He collapsed once at the agency and I had to call an ambulance". The conversation ended soon thereafter so I have not spoken to Mr Smith since that time. 47 Mr Smith gave evidence in the proceedings. At first he said he had never had a conversation with Ms Salamon but later conceded that part of the first conversation and the substance of the second conversation did in fact take place but the person he was speaking to had not identified herself.

48 The part of the first conversation Mr Smith denied was in relation to Jason Gale. Mr Smith said he did not have any arrangement with Mr Gale in relation to betting. I note Mr Smith at the time he made out his affidavit was General Manager of South's Acacia Leagues Club Limited in Brisbane. The Club had TAB facilities. Termination of Ms Salamon's Agency Agreement 49 On 13 April 2004 Mr Hunter communicated with Mr Peter Paine, Group Business Risk Manager for the TAB recommending that Ms Salamon's Agency Agreement "be terminated under Clause 16.1(d) for her breaches of Tab policies." Mr Paine supported the recommendation and termination was approved by the Sales and Marketing Manager, Mr Peter Staunton. 50 By letter dated 14 April 2004, the Agency Agreement between the TAB and Ms Salamon was summarily terminated. The letter stated, inter alia: Tab Limited advises pursuant to clause 16.1(d) of the agency agreement between you and Tab limited of 17 April 2003 ("the Agreement") that it proposes to summarily terminate the Agreement effective immediately (14 April 2004) on the basis that you: (1) breached mandatory procedures by manipulating a cash under on 13 March 2004 (contrary to Cash Office manual clause 14.8 and admitted by you in your email of 14 March 2004); (2) knowingly concealed a cash under by signing an agency cashiers summary that you knew to be incorrect (contrary to Cash office manual clause 14.8 and admitted in your email of 14 March 2004); (3) held cash on a customer's behalf to cover future bets (contrary to Cash Office manual clause 14.6.1 and disclosed by you and confirmed by Mr Gale in his statement); and (4) operated an unapproved phone betting service for customers (contrary to Online Procedures Answer ID 331). We confirm that you indicated in your various meetings that you were aware of TAB Limited's operating policies and procedures. We also confirm that extra copies of the operating policies and procedures were provided to you at our meeting on 7 April 2004. In fact our records show that some of the above procedures and policies were reinforced to you in a meeting with OSMs on 9 February 2003. Bondi Beach incident 51 The reference in the termination letter to a meeting on 9 February 2003, referred to an incident when Ms Salamon was working as a relief agent at the Bondi Beach agency. In relation to that incident Ms Salamon stated: I was aware that a customer Mr Gary Stevens had brought in approximately $70,000.00 and left the money with the owner Mr Fowler and which Mr Stevens used to place bets. However I did not hold this amount on behalf of Mr Stevens. On 9 February 2003 I did hold the amount of approximately $27,000.00 for Mr Stevens which I knew to be the proceeds of a large win. I was holding this money at the window of the agency with Mr Fowler's knowledge and consent. 52 Mr Mather's evidence regarding the Bondi Beach incident was that: We attended the Bondi Beach Agency, where Ms. Salamon was working as an Agents Relief. Mr. Jeff and I attempted to cash count the operator liability. A short way into the count it was noted there was more cash than was recorded on the operator liability. At this point Samantha commented she owed the large investment customer some money. We asked her to settle with (the) customer and commenced a cash count on the safe. From memory the safe balanced. We then commenced a reconciliation of the operator liability. We reconciled the operator liability and found a small discrepancy of approximately ten dollars. I advised Samantha that holding cash on a customer's behalf was unacceptable and not in line with TAB procedures. I spoke to Samantha about the use of customer coupons. We discussed the positives of customer coupons from the customer's perspective. The positives include privacy and security. Coupons minimise the cash handling between customer and operator. I then went on to highlight some of the issues associated with keeping tally sheets. The need to account for TAB funds was discussed. I discussed the potential problems if we had a theft or hold up. The customer would have an expectation that the TAB would honour the credit he had established with her. I then discussed coupons as a better and safer mechanism from the operator's point of view in minimising errors. Phil then made the comment to Samantha that if we had have attended and the operator liability was in negative as opposed to positive we would have had a situation of credit betting. The three of us had a discussion about Samantha applying for agencies and Phil and I left the agency. 53 Mr Jeff also attended the Bondi Beach agency on 9 February 2003. His version of events was as follows: On Sunday, 9 February 2003, I was contacted by Mr. Mather, who informed me that he wished to perform a cash count at the Bondi Beach Agency. I met Mr Mather at TAB Granville PhoneTAB centre. We then traveled (sic) together by car directly to Bondi agency. Ms Salamon was on duty when we arrived and at the first available opportunity we informed Ms Salamon of the purpose of our visit. Between races, an office cash liability was obtained from the terminal and we conducted a reconciliation of the cash held at the window. This reconciliation revealed that there was considerably more cash than required at the window. I recall that Ms Salamon said:

"I am currently holding money on behalf of a customer." Ms. Salamon then showed us the tally sheet she had been keeping. Mr Mather said:

"Pay the customer any money owing to him and we will proceed to count the money held in the safe." I recall that the money in the safe balanced. We returned to the selling area and conducted another reconciliation of the cash held at the window. This time the reconciliation balanced within $10 to $15. I recall that Mr. Mather had a conversation with Ms Salamon and outlined TABs preferred method of servicing a customer using customer coupons. I recall that I said: "Keeping tally sheets is not acceptable to TAB and that if, for example, you had been owed money by the customer when we arrived it would then be a matter of credit betting." Ms Salamon, Mr Mather and myself then had a conversation in regard to Ms Salamon applying for agency vacancies in which I outlined my experience as an agent and a couple of suggestions she might consider when applying. Mr Mather and myself then left the agency and went on to conduct a further cash count at Pagewood agency.

54 Ross Thomas Fowler held the Bondi Beach agency in February 2003. Mr Fowler was summonsed by the applicant to give evidence in the proceedings. Mr Fowler was not in attendance at the agency on 9 February 2003 but he stated that Ms Salamon, the customer involved and other customers spoke to him about the incident. 55 Mr Fowler said in his evidence he was never spoken to or disciplined in relation to the incident of 9 February 2003 by any person from the TAB. He did say, however, he had cause to complain to his regional manager about what his customers regarded as the heavy handedness of Mr Mather and Mr Jeff in dealing the matter. 56 In relation to Ms Salamon holding a large amount of cash for a customer and keeping a record or a tally of what bets he made from that cash, Mr Fowler said such a practice was not encouraged but that there were extraordinary circumstances. Mr Fowler explained: It was a guy walking in with about $50,000. Now this just doesn't happen. So - and for him to have a bet of say $2,000 bet each way for us to count it out is too difficult. What we did is we took the money off him, counted it and then had it behind the counter; if we had him in the public space it was $50,000 it would have been inviting a robbery. It would have been unsafe so we secured it behind the counter and kept a running total and did it that way.

Mr Fowler said he had only held cash for the one customer.

57 Mr Fowler was asked about the coupon process and why he did not use them: We originally tried to get him [the punter] to use them but he wouldn't. They are not user-friendly - they're great in theory. I have tried them in different times over two or three years but nobody ever uses them for any length of time. They probably use them two or three times and say mate this is too hard and don't use them. So I have not met a customer yet that has requested one and I don't know of any agent that has customers that use them - maybe they do but I have not yet run into them. 58 In cross-examination, Mr Fowler agreed Ms Salamon "had quite a deal of experience" and that she was fully aware of the requirements for dealing with cash unders. Further, Mr Fowler's attention was drawn to the rule that cash was not to be held on a customer's behalf to cover future bets. He said he was aware of the rule and so was Ms Salamon. The following exchange occurred between counsel for the TAB and Mr Fowler: Q. There was no suggestion from anybody at the TAB so far as you are aware that it was permissible to hold the cash behind the counter or against bets placed into the future? A. I knew it was against procedure. But I told the whole free world about it - everybody knew about it.

Q. Nothing was said to you back when this was occurring in any way alters your understanding it was against procedure? A. None at all; I knew it was against procedure. Sales were clapping their hands; they were well aware what I was doing.

And further: Q. After Samantha was instructed to pay the man back his cash after that point in time which occurred on the Sunday I think? A. Yeah it was a Sunday. I remember that.

Q. You are quite clear in your own mind it was impermissible to hold this gentleman's cash? A. No I was not - nobody spoke to me. If they had a problem why didn't they speak to me either officially or unofficially you won't find any note; you won't find anything.

Q. And in any event that was an extraordinary circumstance? A. Yeah. This particular punter had a lot of money at one time.

Q. And that situation has not arisen again at your agency since that time? A. No.

Q. And you don't hold cash for anybody behind the counter now? A. No.

Q. Because you are very clear it is against the rules, it is not permitted? A. Yeah that's right.

Q. And you certainly do not hold cash for people that deposit it with you and then leave? A. No. Q. And ring in bets later on? A. No. Q. Because you know that is not permitted? A. No. ... Q. You know and you don't do this because you know you are not permitted to hold cash for $500? A. Yes sure. Q. Behind the counter on behalf of someone who will then ring in bets later on? A. No. Q. And the reason you don't do that is because you know it is against the rules? A. And it is a pain in the backside.

Q. And if caught doing it, you could have your agency terminated, you know that? A. That's right. Sam Borraccino 59 The applicant raised the TAB's treatment of Mr Sam Borraccino, who held the Marrickville agency and submitted that although Mr Borraccino had committed breaches more serious than her own his Agency Agreement had not been terminated. 60 In 2001 Mr Borraccino's Agency Agreement was terminated after it was found there was a cash shortage of $574.00. The TAB regarded this as a serious breach. However, on the basis of Mr Borraccino's cooperation and candour in the investigation he was offered a twelve months' Agreement, which he accepted. 61 In June 2004, following another investigation, Mr Borraccino was again found to have breached TAB's policies and procedures. This time, according to the TAB, Mr Borraccino: (1) Knowingly breached TAB operating procedures by paying a window cleaner from TAB cash; (2) Did not balance the cash on 16 June 2004; (3) On three occasions money was not banked on the next available banking day to cover dividend cheques issues; (4) On one occasion a cheque for $5,000 was cashed and money brought into the agency for no legitimate reason. The money was re-banked one week later; (5) On ten occasions Mr Borraccino signed a bank statement indicating the bank account balanced when it did not. 62 In a memo dated 28 June 2004 to Mr Staunton, Mr Hunter described Mr Borraccino as having been dishonest "in his response to the questions of the OSMs" and recommended that Mr Borraccino "be advised of the findings of the review and be asked to show cause as to why his Agency Deed should not be terminated."

63 In the result, Mr Borraccino's Agency Agreement was not terminated. Mr Goldsworthy said in his evidence regarding the Borraccino matter: I confirm that the investigation which Mr. Hunter and I conducted was at all times in accordance with TAB procedures. I believe TAB conducted the cash under investigation at the Marrickville Agency in the same manner as any other cash under investigations I have been involved in, including the investigation at the Jannali Agency involving Ms. Samantha Salamon in March 2004. The situation at Marrickville Agency was entirely different from that of the incident at Jannali Agency in March 2004. The Company's investigation of the incident found that Mr. Borraccino was not responsible for a cash shortage at the Marrickville Agency in June 2004. Mr. Borraccino fully co-operated with the investigation conducted by Mr. Hunter and I. 64 In stating that Mr Borraccino was not responsible for the cash shortage in June 2004 it would appear that Mr Goldsworthy ultimately accepted Mr Borraccino's statement that he did not give his relief agent instructions to pay the window cleaner from TAB funds. As to the other breaches, Mr Goldsworthy appears to have considered these did not involve fraud or concealment (whereas that was not so in the incident involving Ms Salamon), although I note Mr Hunter's allegation of dishonesty. Whether pattern existed between betting and applicant's banking records 65 Abut a week prior to the trial commencing Mr Hunter was requested by the respondent's lawyers to undertake an exercise whereby he compared Ms Salamon's banking records with bets made at Jannali to see whether any particular pattern emerged that might show Ms Salamon was betting on that day. Mr Hunter suggested there were matches between deposits and withdrawals made by Ms Salamon on 2 October 2003 and bets of $20.00 or more placed at Jannali. For my part, I have to agree with Mr R de Meyrick of counsel for Ms Salamon that the exercise was "full of anomalies and quantum leaps in logic and arbitrary assumptions". As counsel submitted: The so-called pattern suggests that:

· no-one else in the shop could have placed a multiple winner bet other than the Applicant.

· The so-called pattern ignores the fact the supposed punter actually bet outside the pattern a number of times.

· It is supposed to match up with withdrawals, BUT insufficient time between bets and results to match up with withdrawals.

· The amounts don't match anyway. 66 No reliance at all can be placed on the matching up exercise carried out by Mr Hunter. Applicant's financial position

67 In relation to her present employment and financial position, Ms Salamon's evidence was as follows: Prior to the termination of the Agency Agreement I was receiving remuneration arising from operating the Jannali TAB of approximately $129,000.00 per annum. On or about 12 June 2004 I obtained casual employment managing the Jannali Inn Pub TAB outlet. In this position I worked approximately 12 hours per week and received approximately $215.00 (net) per week. I ceased working at the Jannali Inn Pub TAB on or about 24 October 2004. From 18 August 2004 to 7 October 2004 I worked one day per week at the Abbotts Hotel Pub TAB. I received $100.00 (net) per week. I have obtained an apprenticeship as a harness racing driver. I am an apprentice to Mr Glen McElhinney of Bankstown. As part of my apprenticeship I have enrolled at Richmond TAFE to obtain a certificate for harness racing driver. I earn $300.00 (net) per week working for Mr McElhinney. ... I set out my financial situation as follows: (i) On or about 19 October 2004 I borrowed from my mother and my sister Yvette $150,000.00. The money I borrowed was used to pay my debts including credit cards debts, legal bills and to pay out the car lease which was previously being paid from commission I obtained from the Jannali TAB. There is an amount of approximately $46,000.00 of the loan which is being held to pay for future legal expense and unforeseen living expenses. I am making repayments to my mother and sister of $200.00 per week which is directly debited from my account. (ii) I have borrowed $50,000.00 unsecured from my mother's sister Ms Evelyn Tobin. This money was used to pay for operations for my mother relating to her cancer and for a cochlear implant in order to restore partial hearing to my mother who is deaf. When I was the agent at the Jannali TAB I was giving my mother approximately $150.00 per week and also paying the rates, telephone bills, electricity, gas and water bills and her medical expenses. My mother is on a disability pension and is earning $476.50 per fortnight. I now no longer give her a fixed amount per week and only help out when I can. 68 In her oral evidence Ms Salamon stated that the Harness Racing Authority granted her a trainer and driver's licence in May 2005, which was when she stopped receiving an apprentice's wage. Ms Salamon said she had not earned any monies from her trainer and driver's licence. The relevant legislation

69 The relevant legislation governing the determination of this matter is primarily ss 105 and 106 of the Industrial Relations Act 1996. Those provisions are in the following terms: 105 Definitions In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. unfair contract means a contract:

(a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (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. 106 Power of 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. (2A) A contract that is a related condition or collateral arrangement may be declared void or varied even though it does not relate to the performance by a person of work in an industry, so long as: (a) the contract to which it is related or collateral is a contract whereby the person performs work in an industry, and (b) the performance of work is a significant purpose of the contractual arrangements made by the person. (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. (6) In making an order under this section, the Commission must take into account whether or not the applicant (or person on behalf of whom the application is made) took any action to mitigate loss. 70 The test of unfairness under s 106 of the Act (and its predecessor provisions in s 275 of the 1991 Act and s 88F of the 1940 Act) has been commented on a number of occasions in decisions of Full Benches. In Baker v National Distribution Services Ltd (1993) 50 IR 254. At 271 Fisher CJ and Hungerford J in the Full Court of the Industrial Court stated: The test of unfairness within the meaning of s 88F of the Industrial Arbitration Act, and hence s 275 of the present Act, has received much attention by the Court and by the previous Industrial Commission over very many years, but, in our review of the cases, the approach stated by Sheldon J in Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371 over 26 years ago has endured; his Honour commented (at 374) that unfairness of a contract or arrangement was to be determined according to "the common sense approach characteristic of the ordinary juryman ….It is a plain matter of morals not law." His Honour cautioned, however, (at 374,375) that the section's "massive power makes it imperative that it should be exercised with proper restraint … it should not permit itself to become a refuge for those who are merely disgruntled with a bargain entered into on even terms. … the discretion should be exercised to protect victims of wrong dealing not to prescribe anodynes." Those words by his Honour echoed what had been said earlier by Beattie J in Agius v Arrow Freightways Pty Ltd [1965] AR (NSW) 77 at 89 that it was a matter of deciding "in each particular case by the application of the tribunal's common sense and sense of justice whether a particular transaction is unfair, harsh and unconscionable". The nature of the unfairness attracted by s 88F was considered later by the Industrial Commission in Court Session (Perrignon and Dey JJ, Cahill J dissenting) in A & M Thompson Pty Ltd v Total Australia Limited [1980] 2 NSWLR 1 at 13 as follows: It has been said that fairness is determined by the commonsense approach of a juryman and that it is a moral and not a legal issue ( Davies' case). Whether this be so or not, it does seem that in distinguishing between what is fair and what is not fair the Judge must apply standards which appear to him to provide a proper balance or division of advantage and disadvantage between the parties who have made the contract or arrangement. In doing so he would always have to bear in mind the conduct of the parties, their capability to appreciate the bargain they had made and their comparative bargaining positions when entering into the contract or arrangement." (at 271-2).

71 Upon a finding of unfairness the Court may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry: s 106(1). 72 As s 106(2) makes clear, the Commission may find that a contract was unfair 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. 73 Section 106(5) permits the Court to make such orders 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. In making any orders under the section, s 106(6) requires the Court to take into account whether or not the applicant took any action to mitigate loss. Consideration

74 The contract for consideration in this case is the Agency Agreement entered into between the applicant and the respondent in April 2003 and terminated by the respondent twelve months later. 75 The appellant contended in her summons for relief that the contract between the applicant and the respondent, being the Agency Agreement, was unfair, harsh or unconscionable and/or against the public interest in that: (a) the applicant was at all material times in a position of unequal and inferior bargaining power with respect to her dealings with the respondent and was particular (sic) so in relation to the respondent's decision to summarily terminate the Contract;

(b) it invested the respondent with significant (discretionary) powers which have been used to the substantial disadvantage of the applicant;

(c) it permitted the respondent to conduct itself in a one-sided manner which was contrary to the legitimate expectations and understandings of the applicant particularly in circumstances where such actions of the respondent had the potential to, or did in fact, damage and/or detrimentally impact on the capacity of the applicant to perform work in the sports betting industry for the respondent;

(d) it failed to contain any or any reasonable provision to protect the applicant against conduct by the respondent that was itself unfair, harsh or unconscionable and/or against the public interest;

(e) the Contract, to the extent that it contains restraint provisions in the cl 18, is: (i) unfair; and/or (ii) harsh; and/or (iii) unconscionable; and/or (iv) against the public interest. 76 The alleged unfairness was said to have arisen essentially out of the respondent's termination of the Agency Agreement. The decision by the respondent to terminate was taken on the basis of what was alleged to have been breaches of the Agreement by the applicant. 77 As to the nature of the breaches, I consider counsel for the applicant was correct when he submitted that the applicant's Agency Agreement was terminated for what were essentially two breaches of the TAB's policy. The first breach related to the cash under on 13 March 2004 where the applicant failed to report the cash under and failed to record the cash under on the Cashier's Summary. The second breach involved operating an unauthorised betting arrangement with a customer whereby the applicant would hold cash and take telephone bets for a customer or customers. 78 Further, in his opening address Mr de Meyrick submitted: One of the matters that will loom large here, and it may not loom large on the pleadings, but I certainly intend to explore it in the case, and I think it is fairly detailed on the affidavit evidence as it stands, is almost complete lack of any proper induction or training for agents when they take over an agency. There seems to be a presumption that agents, because they only advertise for them internally, will have some kind of good working knowledge of cash handling techniques, and that somehow it all ought to balance itself out, and they ought to know what they are doing. They ought to be acquainted with all the manuals. They ought to be acquainted with the almost thousands of questions and answers that appear on the TAB's website called Top on TAB (sic - TAB on Tap), and yet you will find very little, if anything, in the material that shows that the respondent has taken a broad, active role in training or ensuring that persons such as the applicant know what they are doing. 79 It may be seen then, the essential issue in these proceedings is whether the Agency Agreement between the applicant and respondent was unfair. The issue may be broken down into a number of separate considerations: (1) Whether the applicant was provided with appropriate or adequate training to enable her to be aware of and understand the respondent's policies and procedures in relation to the handling and reporting of cash unders and unauthorised betting arrangements and the implications for breaching those policies and procedures; (2) Whether in the absence of adequate or appropriate training, the applicant was relevantly aware of the TAB's policies and procedures in relation to the handling and reporting of cash unders and unauthorised betting arrangements and understood them and the implications of breaching those policies and procedures; (3) Whether the applicant was at all material times in a position of unequal and inferior bargaining power with respect to her dealings with the respondent; (4) Whether the Agency Agreement was unfair in enabling the respondent to terminate the Agreement wholly or partly on the basis of the applicant's conduct regarding the cash under on 13 March 2004; (5) Whether the Agency Agreement was unfair in enabling the respondent to terminate the Agreement wholly or partly on the basis of the applicant's conduct in connection with the betting arrangement with a customer; (6) Whether the restraint clause (cl 18) of the Agency Agreement was unfair.

Adequate training 80 It would appear from the evidence that the TAB does provide formal training to persons who are appointed as agents but only where those persons do not have any prior experience in a TAB agency. Agents such as Ms Salamon, who had experience, did not receive any formal training induction or otherwise in relation to the TAB's policies and procedures. The only other type of training provided was marketing-oriented development training. 81 The respondent's approach to training agents was explained by Mr Goldsworthy in cross-examination: Q. Who is responsible for training agents? A. Agents are independently contracted people, they bring to the role a level of competency, ability, operational skills in most cases. They come with either the ability or the capacity to perform under the terms and conditions of the deed.

Q. Some agents, although not many, are appointed from outside the TAB altogether? A. A very small number are, yes.

Q. Who is responsible for training those people? A. They would undergo a training programme that involved head office training in a training room; it is an assimilated environment; they would go out and spend time with an experienced long term competent agent to learn in the agency; they would have sessions with the operations support people to go over the operational aspects of the role; they would be given an agent that would be a contact for them.

Q. Why doesn't that happen with agents who are appointed from the ranks of relief agents, for instance? A. It would not be cost effective to do that. Agents appointed from relief agents have long term, depending on the length of time, operational experience.

Q. In terms of the various different types of training you described a couple of answers ago as being made available to, or supplied to, agents appointed from outside the TAB's pool of employees, I want to suggest to you that does not always occur; what do you say about that? A. The number of times a truly outside person is appointed, when you say "outside" the TAB's employee network, that is not correct; that is outside the TAB's family network. There are agents, relief agents, there's internal people that are on TAB staff that would have very high operational knowledge. There would be casual relief agents, casual staff that work in agencies. You are talking about a person that came in from a completely different industry that would never have worked a TAB terminal. I can't imagine a circumstance where I can recall we put them into their agency: Here are the keys, off you go. 82 It may comfortably be concluded that Ms Salamon received no structured training, induction or otherwise, from the respondent in the operation of an agency or in relation to the TAB's policies and procedures. It would appear that an agent's level of knowledge and understanding of these policies and procedures is assessed at the time the agent is interviewed in relation an application for an agency. Evidence about how detailed the assessment is was scant, so the degree to which Ms Salamon was quizzed about her knowledge and understanding of such matters as the respondent's policy and procedure manuals, "TAB on Tap", cash control procedures and cashier's responsibilities, is not known. 83 It may be the interview panel satisfied itself that Ms Salamon had a good knowledge and understanding of TAB's policies and procedures or simply assumed that was the case. Whilst it is not a material consideration in this case because of what I have concluded under the next heading, it does seem to me that unless the TAB properly satisfies itself of a prospective agent's knowledge and understanding of cash control procedures for instance, the TAB runs the real risk, in unfair contract proceedings, of having a finding made against it if the applicant in those proceedings was able to establish an Agency Agreement had been terminated because the applicant had breached cash control procedures of which the applicant had not been aware because he or she had not received any training or instruction in relation to such procedures. Applicant's knowledge and understanding of TAB's policies and procedures

84 I do not consider there is any doubt the applicant was very familiar with the TAB's policies and procedures including cash control procedures, its policies regarding dishonesty, the rules against placing bets whilst on duty and the rule that: Cash is not to be held on a customer's behalf to cover future bets. Also, tickets are not to be held on a customer's behalf prior to the running of a race on which that ticket relates. 85 The evidence supporting that conclusion was as follows: (1) Prior to her appointment as an agent in April 2003 Ms Salamon had eight years' experience with the TAB. From 1994 to 1996 she was employed on a part time basis at the Bondi Beach agency of TAB. From 1996 to 2003 she was employed at the Bondi Beach agency of TAB as an agent's relief working approximately 30 hours a week. During this time she also worked part time at the TAB agencies at Crows Nest, Belfield, Maroubra, Botany and Bondi Road as an agent's relief. As a relief agent at Bondi Beach, Ms Salamon relieved Mr Fowler at one stage for a continuous period of four months. (2) Mr Fowler described Ms Salamon as "magnificent" in the operational sense; he was in no doubt Ms Salamon was aware of TAB's requirements regarding cash unders. (3) In signing the Agency Agreement Ms Salamon was aware that she was required to comply with the following: (a) TAB's policies and procedures in force from time to time including the policies and procedures detailed in the Manuals (cl 4.1(m)); (b) the Totalisator Act 1997, the License and TAB Compliance Policy and, in particular, "…must not engage in credit betting;" (cl 4.8 (a)(i)); (c) "the Manual, instructions and directions issued by TAB to the Agent with respect to the operation of the Agency and achievement of the Purpose." (cl 4.9); (d) " Be of good character and reputation and not indulge in unethical or reprehensible conduct during the term of this agreement whether in the operation of the Agency or otherwise…" (cl 4.4); (e) "All deficiencies in money received by the Agent must be properly recorded and promptly reported to TAB. (4.14(d))". (4) A copy of the Cash Office Manual was located at the Jannali agency. The Manual provided that: (a) "All office cash is to be counted daily in order to balance the system generated Office Liability. If the office cash and office bank balance do not agree to the system balance, declare a cash error and process the appropriate cash error accounting transaction to adjust the system balance." (cl 14.4). (b) "A separate Cashiers Summary (TAB 589) is to be completed by each cashier. All transactions that affect the cashiers (safe) balance or the Office Bank Balance, including cash movements to and from the safe, are to be recorded in the appropriate section(s) at the time the activity occurs… If an unauthorised variation is present when balancing the Cashiers Summary, record it as a Cashiers Cash Over or Under and process the appropriate accounting transaction." (cl 14.5). (c) "Concealment or manipulation of Cash Overs or Unders will render ALL persons concerned liable to immediate dismissal and/or termination of the Agency Deed as applicable." (cl 14.8). (d) Cash is not to be held on a customer's behalf to cover future bets (cl 14.6.1). (5) In her written report to Mr Jeff of 14 March 2004 the applicant conceded that she committed an "error of judgement" when she "…decided not to report it to SOS but to pay for it myself by withdrawing the cash from my credit union account over 2 day's …" The applicant conceded that she "did not follow procedure …" (6) When asked, during the interview on 29 March 2004, to describe TAB's policies in relation to cash control the applicant responded, "I know you balance the safe. I know you balance the drawer and make sure everything is accounted for, yes." (7) When the specific proposition was put to the applicant in the interview on 29 March 2004 that she was not allowed to hold tickets or cash on behalf of customers she responded, "Yes". However, under cross-examination the applicant stated: "I don't know why I would have said "Yes". I couldn't understand what he was saying, but definitely further on in that interview I definitely made mention of what happened at Bondi and holding cash for customers there." This is true, but as the respondent pointed out in its submissions, the denial came only after the applicant was made aware that there was CCTV footage showing Ms Salamon placing bets. Before she was shown the CCTV footage the applicant confirmed that she was aware of the rules against credit betting, placing bets whilst on duty and the relevant cash control procedures (including that "…when you find a shortage, … you are meant to declare it") and that she became aware of the rules by way of "…all the operating instructions". She confirmed that she had read all the operating instructions and that she had been in the agency network for quite a few years. She was aware that the penalty for breaching those policies and procedures was disciplinary action taken against the agent. (8) A number of times in the past Ms Salamon had reported cash shortages. On 5 November 2003 the applicant reported a cash under in excess of $200 to the TAB's Operations Support. (9) Ms Salamon was aware of the "TAB on Tap" intranet facility and had used it. (10) During the interview with Mr Hunter and Mr Goldsworthy on 29 March 2004, in relation to the issue of holding a customer's cash, the applicant stated: "I didn't think that was a problem at the time because it doesn't say in operating instructions that you can't hold money for a customer and I've gone through all the compliance things." Whether the applicant was in a position of unequal and inferior bargaining power

86 Counsel for the applicant submitted that the Agency Agreement was a very one-sided contract, giving the respondent wide powers and wide discretion. It was submitted the Agency Agreement permitted the respondent to summarily terminate the Agreement without compensation for any breach of any policy, direction, or manual and that the triviality or seriousness of the breach did not bear on that right. Further, it was contended, the respondent was not required to, and in fact did not, take into account mitigating factors, explanations, the applicant's "long and spotless employment history with the Respondent", and the harsh consequences of termination. 87 I understood the applicant, in putting this submission, was seeking to highlight what she considered to be the innate unfairness of the contract. But also that it demonstrated an inequality in the bargaining position of the parties. In other words, the fact that a person would be led to sign such a one-sided agreement was indicative of such inequality. 88 The terms of the Agency Agreement weigh heavily in favour of the respondent when it comes to the power to terminate the Agreement. For instance, the Agreement may be terminated by the respondent for a failure to comply with a Manual or the TAB's administrative system, regardless of the nature of the failure and how trivial it might be. Moreover, the decision to terminate: is entirely at the option of the TAB; may be made without notice; is without prejudice to any remedy the TAB may have against the Agent; and, "no compensation will be paid to the Agent or the Agent's representative." The terms of the Agreement in relation to the respondent's power to terminate leaves considerable scope for frivolous decisions to terminate an Agency Agreement or decisions driven by prejudice or mischief. 89 I have the clear impression that the Agency Agreement is a standard form contract, there being no scope for a prospective agent to negotiate different terms. I suspect with there being no shortage of applicants for an agency the TAB approach to any discussions about the terms of the Agency Agreement would be essentially, "take it or leave it." Equally, I expect, there would be no shortage of candidates who were prepared to accept the standard form contract, it giving access to a reasonably lucrative source of income. 90 In the present case, there is no doubt that Ms Salamon was eager to win an agency. Ms Salamon presented as an intelligent, confident and articulate person with considerable experience in the operation of the TAB and its agencies. Before signing the Agency Agreement Ms Salamon was advised to read it carefully. I am satisfied Ms Salamon was aware of and accepted the terms of the Agency Agreement upon signing it and there was no evidence she took any exception to any terms of the Agreement. Notwithstanding she probably considered the terms were not negotiable in any event, there was no indication Ms Salamon was in any way perturbed by any term of the Agreement. 91 Even if it could be said there was an inequality in the bargaining position of the respective parties that favoured the respondent, this would not be unusual. In Bennett v BP Australia Limited (unreported, No. 632 of 1983, 28 March 1984), Macken J observed: Inequality of bargaining power is frequently a reason for an unfair or harsh contract to be struck down under s 88F but standing alone it is not sufficient. In one sense, parties to a contract are never in an equal bargaining position; there must always be some differences between them and some advantages and disadvantages attaching to one side or the other. 92 In BP Australia Ltd v Klepat Pty Ltd (1982) 2 IR 352 at 357 the Full Bench (Fisher P, Cahill and Watson JJ) observed: The parties may not have been in an equal bargaining position but that is only relevant if, in the result, their arrangement is unfair as a consequence of this disadvantage. 93 No unfairness flows from the relative bargaining position of the parties in this case. Ms Salamon entered the Agency Agreement with her eyes open, knowing full well the wide powers invested in the TAB in respect of termination of the Agreement. The applicant appreciated the nature of the bargain she was making and it may be inferred she was prepared to accept the risk of termination without notice or compensation for any breach of the TAB's policies and procedures for the benefits that the Agreement would bring her. 94 I am unable to conclude the Agency Agreement was unfair on the basis of an inequality in bargaining power. Applicant's conduct regarding the cash under

95 In relation to the applicant's conduct regarding the cash under Mr de Meyrick's submissions may be summarised as follows: (1) There is no rational suggestion that this conduct constitutes fraud, or attempted fraud, or any other category of misconduct that would warrant termination of the contract. (2) The applicant bore the ultimate responsibility for payment of the cash under from her own pocket. Indeed she had partially repaid $595 (by placing a cheque for that amount in the safe) when the OSM's attended. The applicant had reported cash unders regularly in the past and had a sensible reason for refraining from doing so on the evening of 13 March 2004. (3) The reason why the applicant did not report the cash under on 13 March was that she hoped to discover the source of the apparent shortfall through further investigation the next day. Accordingly, she filled in the Cash Summary as balancing. In the meantime, she made provision for the repayment of the cash under from her own funds, in accordance with the respondent's policy. (4) Even without regard for the applicant's mitigating explanation of her conduct in not reporting the cash under on the evening of 13 March, the most that can be said about the incident is that the applicant breached a policy. Given the applicant's obligation to repay the sum in any case, it is unfair to elevate such a bare breach of policy to a matter of misconduct warranting summary termination. (5) The respondent attempted during the course of the hearing to elevate the cash under breach to something more than a bare breach of policy. It was put to the applicant that she had concocted the issue with "Gary" (to whom she said she paid the $1145), and had not told the truth about the cheque in the safe. However, the respondent's case in this regard was entirely unconvincing; was contradicted by documentary evidence; and, was, in any case, well beyond anything put to the applicant during the interview or investigative process. (6) The evidence contradicting the respondent's case in respect of the cash under was: (a) Catherine Zigas (the applicant's co-worker on 13 March) entirely supported the applicant's account of the incident with "Gary"; (b) Ms Tobin told Mr. Jeff that there was no cheque in the safe on 28 or 29 February 2004; (c) Ms Steman's statements and evidence, which did not sit well with the respondent's theory about the applicant's conduct. 96 The incident that led to Ms Salamon failing to report a cash under was, according to the applicant, the payment to "Gary" earlier in the day of an amount of about $1145.00. This occurred between 2.00 pm and 5.00 pm. The applicant stated that the customer chose a very busy time to argue that he had not been paid and began causing a scene in front of other customers. She stated: With our uncertainty we paid him the cash only to balance $1,145 short. At the time I did not doubt him as he had come in regularly and on those occasions had appeared to be an honest and nice enough sort of guy. 97 In relation to this explanation Mr Murphy, counsel for the respondent, contended: If this story is to be believed it discloses a level of naivety which is entirely incompatible with the applicant's own assessment of her knowledge and experience in this industry, as well as Mr Fowler's assessment of her. This is especially so given that, on the applicant's story, she paid Gary an amount of $1,145: (a) without ever sighting his winning ticket; (b) without having any idea what the ticket was for (although this part of the story changed dramatically on the first day of this hearing); (c) without conducting a cash count (which, on the evidence, takes approximately two minutes) to establish whether a winning ticket had been scanned but not paid out; (d) without seeking the assistance of the SOS desk to establish whether there was a live unpaid ticket issued by the Jannali agency for that amount; (e) simply because Gary looked at the terminal screen and said he saw something come up to say he should have been paid and but claimed he hadn't been (although this aspect of the story also changed significantly during the hearing); and (f) without even knowing Gary's surname.

It is simply beyond belief that an agent with the applicant's experience and obvious acumen would have done this in the circumstances she described in her interview of 29 March 2004. Even her own witness, Mr Fowler, agreed with this proposition. 98 It was submitted for the applicant that she was a young woman, not altogether used to dealing with "hysterical" customers yelling for their money. That she knew this Gary because he frequented the Jannali agency, had offered his telephone number (which turned out to be the number of the local hotel) if Ms Salamon needed any assistance and had brought her coffee from time to time. Mr de Meyrick submitted the applicant acted naively perhaps but at a very busy time, under pressure, it was understandable that the applicant did what she did in making the payout.

99 The explanation given by Ms Salamon about how she came to make a payout to Gary is not entirely implausible - it could have happened. Nevertheless, it is not at all easy to accept that a person of Ms Salamon's obvious intelligence and experience would have handed over $1145.00 to a customer - even one she knew was a regular - without some reasonable indication that the money was, in fact, owing. Ms Salamon did not strike me as a person easily bluffed or fooled or embarrassed by an agitated customer in circumstances where verification (or otherwise) of the entitlement to a payout would not have involved much time or effort on Ms Salamon's part. 100 What makes the explanation of the Gary incident even more difficult to accept are the following considerations: (1) At the time of the incident and in the interview on 29 March 2004 Ms Salamon provided only the sketchiest of information to those investigating the matter. For instance, in her written report to Mr Jeff of 14 March 2004 she did not, despite having been asked to, give any details apart from the amount of the payout being approximately $1,100, or just over that, and the time being between 2.00 pm and approximately 5.00 pm. In this respect, I accept Mr Jeff's evidence that Mr Mather said to the applicant on 14 March: You should prepare a report of the incident and actions of Saturday. It should tell us how much the shortage was, what terminal the shortage occurred, plus any other information you could give us that could help us find out about the shortage. This will become part of the investigation. Put it in the report, and send it to Phil's email. (2) On 1 December 2004 the applicant swore an affidavit in which she stated, for the first time, that Gary gave her the details of his bet and she checked the information against the results on the terminal. What Ms Salamon meant by the details of the bet was "what his bet was, what horse it was, what race..." This was inconsistent with what she told Mr Hunter and Mr Goldsworthy during the interview on 29 March 2004. During that interview the applicant stated that Gary "basically said that he scanned the ticket and he didn't win any money for it." He said he didn't have the ticket. She stated in the interview, "I didn't look at it (the ticket). We've got viser-scan tickets and throw tickets away in the bin, so I've got no idea what it was, what it was for". She was not sure what had happened but she paid him "about the $1,000 mark". (3) In her cross-examination the applicant recalled the details of Gary's bet as being "a winning bet on a horse in Brisbane." The applicant said she had not provided these details to Mr Mather or Mr Jeff because "I was never asked what the details were… They didn't ask for any further details…" This was not so. Mr Jeff asked for "... any other information you could give us that could help us find out about the shortage." In her affidavit in reply the applicant did not deny that this was said to her. Mr Jeff's contemporaneous note of the incident to Mr Hunter records that Mr Mather requested that in the report the applicant should provide details of times and amounts to assist in identifying the incident from a "TABditto" (the computer record of all the day's transactions). Neither Mr Mather nor Mr Jeff was cross-examined in relation to this matter. The applicant at the interview on 29 March 2004 provided no details of the nature offered in cross-examination. (4) The respondent speculated that the reason why the applicant had not provided details of the bet at the early stages of the investigation as opposed to two years later, was that the applicant was concerned her story could be easily disproved by an examination of contemporaneous TAB records. It was submitted that the applicant believed that two years later would be too late to investigate her story. However, that is not the case. A review of all bets placed on Brisbane thoroughbred races at the Jannali agency on 13 March 2004 revealed that no such bet of the type or size supposedly described by Gary to the applicant was ever laid. (5) Whether the respondent's speculation as to the applicant's motives in not revealing details of the bet in March 2004 is correct, is unnecessary to determine. It is pure speculation. That Gary did not lay a bet of the type or size described does not discount the possibility, for example, that Ms Salamon was conned. However, the failure of the applicant to provide the necessary details in March 2004 to enable a full investigation of her claims, adds another layer of difficulty to accepting that on the balance of probabilities, the incident involving Gary occurred as the applicant contended. (6) On her own evidence, the applicant made no concerted attempt to locate Gary. The only staff member present at the time, Catherine Zigas, provided a written statement to Mr Mather but was not called as a witness in the applicant's case when her evidence could have been tested. The respondent submitted it was open to the Court to conclude that Ms Zigas' evidence would not have assisted the applicant's case. This raises the question of a Jones v Dunkel inference ((1959) 101 CLR 298), namely, that the unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case. It is the case that the reason for not calling Ms Zigas was not explained. Ms Zigas' testimony, if it were consistent with the statement to Mr Mather, would have been very helpful to the applicant. As it was, however, the Court did not have the benefit of seeing Ms Zigas in the witness box. That leaves it open to the Court to draw the inference that Ms Zigas' evidence would not have assisted the applicant. 101 I propose to put aside for the moment any further consideration of the "Gary" issue and deal with the applicant's failure to report and record the cash under. 102 There is no dispute that the applicant failed to report the cash under on 13 March 2004 and that she failed to record the cash under on the Cashier's Summary. The respondent submitted the applicant deliberately concealed from the TAB the fact that the cash on hand was in excess of $1,000 less than it should have been, by logging off the computer without declaring the cash under in the manner that she knew was required. The applicant, it was submitted, compounded the deception by filling out the Cashier's Summary by deliberately writing false figures in Section D of the document. 103 The applicant's case was that at approximately 5.20 pm on the afternoon of 13 March 2004 she did a balance of the cash and in the process became aware of the existence of a "cash under" of approximately $1,145.00. Ms Salamon stated in her evidence: As soon as I became aware of the cash under I immediately did a balance of the safe to make sure the money had not accidentally been put into the safe without the appropriate accounting transaction being done. I obtained the amount that should be in the safe from my opening Cash Distribution card and simply added my cash progresses for the day in order to get the figure of the amount that should be in the safe. Later that evening I undertook a search of the office at the agency in the attempt to locate money which may account for the cash under. The search involved going through the bins in the office space which is where tickets are placed that have been processed that customers leave behind on the counter. Since the customer (Gary) was sure he scanned the ticket I checked the bins to see if I had thrown the ticket in the bin after it was scanned. It has happened in the past that when a ticket is scanned it makes the usual beeping noise but for one reason or another does not process the ticket. If I had found that ticket and scanned it there would have been no cash under to record. 104 The applicant stated that she completed the Cashier's Summary in the way she did because she was still unclear as to what had happened and if in fact there was a cash under or simply an accounting or reconciliation problem. Ms Salamon stated that it was late on Saturday evening; it had been a very busy day and she wanted to look at the issue the following day. If she found the missing ticket the following morning she said could then scan it, which would mean that she would balance. 105 Ms Salamon stated that because she was uncertain as to what had occurred she decided that whilst continuing her investigation she would make good the amount by withdrawing cash from her Credit Union account over two days. The applicant said she needed a period of two days because she understood that her daily withdrawal limit was $550.00. Accordingly, the applicant said on the evening of 13 March 2004 she placed a cheque in the safe in the amount of $595.00 to partly cover the apparent cash under. 106 The cheque Ms Salamon wrote was dated February 2004. The reason for that was explained in the following terms: This was the next cheque in my cheque book. In February 2004 I was on holidays on the Gold Coast. I had attempted to pay for my accommodation by cheque. After dating my cheque I was informed that the place did not accept personal cheques. When I wrote out the cheque on the evening of 13 March 2004 I did not notice the cheque was already dated. 107 The applicant stated that she closed the agency at approximately 9.30 pm on 13 March, intending to withdraw $550.00 the following day, Sunday 14 March. 108 There is no doubt the applicant was aware of the TAB's requirement to report a cash under of over $1,000 and there is no doubt the applicant was aware of the requirements in relation to recording the cash under on the Cashier's Summary. Ms Salamon gave three different reasons for not reporting and recording the cash under. The first was that she felt the cause of the cash under, for one reason or another, would reflect badly on her. Mr Jeff's contemporaneous note of the incident records that the applicant's explanation as to why she had not declared the shortage and contacted SOS with the details was: I know how you guys think and you would assume that I had taken the money. This would not help me when I go for another agency. I know how you think; after all it's your job to think that way. I would think I had done it. 109 In her first written statement made on the day after the incident the applicant stated, "In an error of judgement and fear that I would be in trouble for just handing over the cash I decided not to report it to SOS but to pay for it myself …" According to Mr Mather the applicant, on 13 March 2004, stated she had not declared the cash under as she wanted to become a multi-site agent and that she thought it would reflect poorly on herself. 110 The second reason Ms Salamon gave for not declaring the cash under was that she did not want to have another run-in with Mr Mather. Ms Salamon considered she had been targeted by Messrs Mather and Jeff, claiming that there had been five visits by the OSMs while she was at the Jannali agency. Mrs Salamon later retracted that proposition when pressed and accepted there had been three visits in the period she had been the agent at Jannali. During the applicant's time as agent at Jannali Mr Mather said he had visited the agency on only two occasions, both in the company of Mr Jeff, whereas Mr Jeff had visited the agency on three occasions. The respondent submitted, and I accept, this was consistent with the pattern and frequency of visits to other agencies. 111 The third reason given by the applicant for not declaring the cash under on 13 March was that she was uncertain about what caused the cash under and needed time to investigate the cause but always intended to make good the shortfall out of her own pocket. During the interview on 29 March 2004, when asked about her decision not to declare the shortage, the applicant responded, "Well I didn't know exactly what had gone wrong to start with" and, "I wasn't sure where we went wrong or what we could do, and I just didn't want to go through all this because I've had a lot of run-ins with Matthew Mather and we do not get along." In her primary affidavit the applicant stated that she was, "… still unclear as to what had happened …" 112 It does not seem to me that the third reason given by the applicant for not declaring the cash under withstands scrutiny. In her written report of 14 March, the applicant expressed no doubt as to the cause of the cash under. She was clear that it was the amount paid out to Gary and that she had "…turned the entire office space upside down in my frustration to find the money. However it could not be found anywhere." In her primary affidavit the applicant described how she searched the bins in the agency looking for Gary's ticket. 113 In cross-examination, the following exchange occurred between counsel for the respondent and the applicant: Q. So there wasn't a great deal more to investigate, was there, as to the cause of the cash under? A. Well, I think I was searching for the ticket to see if I could find it.

Q. That was about the only thing that could happen which would explain, or at least resolve, the dilemma if you found the ticket? A. In my view there was nothing else that could have caused it.

Q. So, as of 5.20 that evening [13 March 2004], the only possible resolution of this problem in your view was to find that ticket? A. Find the ticket or find Gary. 114 In my opinion, there are a number of scenarios that explain why Ms Salamon did not declare the cash under. Firstly, Ms Salamon decided not to declare the cash under and had no intention of ever declaring it because either the story about Gary was true and she did not wish to jeopardise her future with the TAB by having to reveal how foolish she had been in handing over $1145.00 without any proper basis to do so. Secondly, the applicant had engaged in betting on duty for herself or another person using TAB cash and at the end of the day found a shortfall that she intended to make good out of her own pocket. A third scenario is that the cash under was caused by some other error or misjudgement on Ms Salamon's part that was more foolish or embarrassing that what she said occurred with Gary and in respect of which she has not been prepared to give details. A fourth scenario would be that Ms Salamon had no idea how the shortfall came about but was not prepared to admit that and, the cash under having been discovered, made up the story about Gary. 115 Before coming to any concluded view about these competing scenarios, it is necessary to consider the issue of the cheque in the safe. As I have stated, Ms Salamon said on 13 March she put a cheque in the safe for an amount of $595.00 as a down payment on what she owed for the cash under and intended to supplement the cheque the following day by drawing on her Credit Union account to the maximum of $550.00. 116 I have already referred to the applicant's explanation for the cheque being in the safe. It seems that initially the respondent took the view that notwithstanding Ms Salamon's failure to declare the cash under and the presence of her personal cheque in the safe, there were not sufficient grounds to suspend the Agency Agreement. However, after being advised by Mr Mather on 16 March 2004 that Ms Steman had told him the cheque had been in the safe since at least 1 March 2004, Mr Hunter recommended to his superior Mr Staunton that the Agency Agreement should be suspended. Mr Hunter's other consideration in recommending suspension was that there was no transaction confirming Ms Salamon's claim regarding the payout. 117 In her evidence Ms Steman insisted that she told Mr Mather on 16 March that she believed the cheque in the safe on Tuesday 2 March 2004 was a cheque to pay the coffee man but that Mr Mather ignored this explanation. 118 It was Ms Salamon's evidence that she recalled that in late January 2004 "Michael" [the coffee man] delivered a cheque to the agency in the amount of $63.00. The applicant said she placed the cheque in the agency's safe and it remained there until Friday 12 March 2004 when the cheque was banked with the ANZ Branch in Sutherland. The bank records support the deposit of a cheque for $63.00. 119 Ms Tobin, who was apparently relieving Ms Salamon whilst she was on holidays, advised Mr Jeff in a phone call that there was no cheque in the safe on 28 or 29 February 2004. 120 I have some difficulty in understanding how it was that Ms Salamon could say she put the coffee man's cheque in the safe, presumably before she went on holidays to Queensland during the period of at least 28 February to 5 March 2004, when according to Ms Tobin there was no cheque in the safe on either 28 or 29 February but according to Ms Steman there was a cheque in the safe on 2 March 2004. 121 The only acceptable explanation, given the weight of the evidence, is that Ms Tobin was wrong in her recollection about there being no cheque in the safe on 28 or 29 February. I am prepared to accept Ms Steman's explanation that there was a cheque in the safe on 2 March 2004 that had been put there by Ms Salamon before she went on holidays and it was the coffee man's cheque that was banked by Ms Salamon on 12 March 2004. 122 The cheque for $595.00 was dated 28 February 2004. It is most unlikely this cheque was placed in the safe by Ms Salamon prior to 5 March 2004 because up until then she was away on holidays. It follows that the cheque seen by Ms Steman in the safe on 2 March 2004 could not have been the cheque for $595.00. 123 In my opinion, the episode of the cheque tends to confirm Ms Salamon's version that she did place a cheque for $595.00 in the safe on 13 March 2004 as a down payment to cover the cash under. I also accept it was her intention to make up the difference in cash but that before she could do so, her failure to declare the cash under was discovered. 124 That brings me to the central question of whether the Agency Agreement was unfair in circumstances where it permitted the respondent to summarily terminate the Agreement on the basis of Ms Salamon's conduct in respect of the cash under. 125 If it had been established that Ms Salamon's conduct in relation to the cash under had flowed on from earlier improper conduct such as betting whilst on duty or credit betting on behalf of customers, there could be no doubt the respondent's decision to terminate the Agreement would have been unassailable. As Mr Goldsworthy stated in his evidence: ...I explained before that cash unders are a good indicator of other issues such as credit betting where you do not collect the funds from the customer and allow them to bet. The TAB terminal is a licence to print money. Agents have run up a hundred thousand dollars before they access that money by not putting the money in. Sometimes they are in strife with financial hardship. The TAB system assumes once that ticket is processed the cash is there. So cash under reporting is fundamental to TAB assets. The integrity of TAB, the system and also is an indicator of potential loss to TAB and loss to the agent.

Q. What is wrong with processing the cash under if one has rung the following morning after fully investigating the matter? A. It is the issue of timing. It is reporting it on the day when it is identified. I could say to you what is wrong with processing it at 12 o'clock the next day or one o'clock the next day? There is a line in there that is drawn and if the cash is subsequently found in this investigation, say the agent will sometimes find the thousand dollars, then they process an over of a thousand dollars, it notes off the thousand under. There is no net impact. That is the way of doing it. 126 This Court is in no position to second-guess the TAB as to what are the proper cash control procedures for its business. However, the Court is in a position to assess whether a contract is unfair in circumstances where the TAB's response to a breach of the procedures by an agent is unfair, harsh or unconscionable. 127 In this case, it has not been affirmatively established in relation to the cash under incident that Ms Salamon was led to conceal the cash under because she was engaged in betting on duty or credit betting. The explanation the applicant gives is the Gary story. The story is not, as I earlier observed, entirely implausible, but on the other hand it suffers from a number of serious defects that I have identified. 128 If there had been a reasonable basis upon which the TAB could have accepted the Gary story but it did not, there may have been scope for the Court to find the Agency Agreement was unfair, notwithstanding the concealment by the applicant of the cash under. That conclusion may have been open to the Court for reasons that included the following: (1) The breach by the applicant was a one-off error of judgement on her part cause by embarrassment at the foolishness at what she had done and not for any improper purpose; (2) The TAB's treatment of Mr Borraccino who had been given the benefit of the doubt in circumstances where he had previously lost his agency because of breaches of procedure; (3) The harsh effect of a summary termination on the applicant and her livelihood given her previously very good record with the TAB over a period of nearly ten years and her expectation of tenure; (4) Mr Hunter's initial response to Mr Mather's report regarding the cash under was that there were not sufficient grounds for suspension. He changed his mind on being advised about the cheque and the fact there was no transaction fitting the description provided by Ms Salamon. The cheque issue is explicable and as I have found it is most likely Ms Salamon placed it in the safe as a down payment on the cash under. As for the non-existence of the transaction, that could not be taken as proof that Ms Salamon was lying. It may well have been the case that Ms Salamon was simply conned by Gary. 129 The main obstacle for the applicant in getting the Court to the point of finding unfairness is having the Court accept the Gary story. Unless the applicant could prove on the balance of probabilities that the Gary story was true, or that there was no other possible explanation for what the applicant did in finding herself $1145.00 short on 13 March, the applicant fails in making out her case. 130 I am unable to accept the Gary story. Ms Salamon is an intelligent woman who had years of experience in TAB agencies undoubtedly dealing with all manner of customers; the rude, the polite and those looking to "pull a swifty". I cannot accept that, on the balance of probabilities, Ms Salamon was so flustered by a customer that she was prepared to pay him $1145.00 without any reasonable evidence that the money was owed. Certainly the Agency was busy on 13 March 2004 but according to the TAB it was no busier than many other Saturday race days that the applicant had experienced over eight years or more. Moreover, there are these other considerations: (1) Ms Salamon's apparent reluctance to be entirely cooperative and forthcoming in assisting the TAB to investigate her story. The withholding of vital information about the bet until she was cross-examined in the witness box two years after the event was not the response of a person who had nothing to hide; (2) There was no concerted effort by the applicant to find Gary who, after all, had, in effect, relieved Ms Salamon of $1145.00 and who was the cause of her suspension and possible termination as an agent; (3) Ms Zigas was not called by the applicant to corroborate what occurred on 13 March 2004 and there was no reasonable explanation by the applicant for the failure to call Ms Zigas; (4) The applicant gave three different reasons why she had not declared the cash under. Such equivocation on such a fundamental issue attracts an element of doubt about whether the incident with Gary actually occurred; (5) The applicant was aware of and understood the respondent's requirements in relation to the reporting and recording of cash unders and deliberately took a decision to conceal the cash under on 13 March 2004. 131 The foregoing considerations, coupled with the fact Ms Salamon entered into the Agency Agreement with experience behind her as a relief agent having had the opportunity to read the proposed Agreement, and warned that she should read it carefully before signing, leaves the Court in the position where it is unable to find the Agreement was unfair in so far as it permitted the respondent to terminate the Agreement for reasons related to Ms Salamon's conduct in connection with the concealment of the cash under on 13 March 2004.

132 During the interview on 29 March 2004 Ms Salamon was shown video footage from a CCTV in the Jannali agency for Saturday 10 January 2004 and Wednesday 4 February 2004. On the first video a man (later identified by the applicant as Gary King) was shown to be entering the agency office area on two occasions. The applicant's explanation was that he brought a video for herself and Ms Zigas to watch so they "…don't get bored to death with what's going on…" The applicant then stated: … and at the same time he's also one of my customers. He comes in. He drops some money off for us and then goes to work and he says, "Well a little bit later on I'll give you a ring and you can, either, if my wife doesn't come in, you know, can you leave her a list of what I've got or can you …

133 The applicant was then shown the second video. This was the video played in Court showing the applicant in the agency placing bets after the agency had closed. The applicant gave the following explanation in the interview on 29 March 2004: You do realise that I've got customers that leave money behind the counter and they have my mobile number and what they do is - so obviously I can't remember that day, but they send me messages and say: can you put such and sump (sic) on whatever the dog or the horse's name was. So I don't know whether I was looking to find that name or whatever, but, as you can see, I'm obviously going behind the counter to either ring him or message him to make sure this is what he wanted and then I put the ticket through for him. ... At no time do I bet at the agency for myself. 134 The applicant then referred to having been through all the operating instructions and knowing for a fact that there was nothing in the instructions to say she could not put bets on for customers. The applicant stated the reason she knew this was because of what had occurred when she was working at Bondi with a customer who would bring in $70,000 and leave it behind the counter. She claimed that Mr Mather and Mr Jeff did not have a problem with this. 135 After viewing further footage and being asked a number of questions, Ms Salamon stated: I've got a customer that always rings up. His wife comes in, she leaves money behind the counter for us, and that money, whatever, 700 or whatever, whatever he wins, that including - did you see I put all the tickets back on the counter, and that's to take and stick in his envelope because he's got an envelope that's got his name on it. It's got the amount that you bought in. I leave all his betting tickets in there and whatever he wins so that goes in there too. 136 The applicant identified this person as Jason Gale. The applicant claimed that Mr Gale told her that he had a similar arrangement with the previous agent Brian Smith. 137 In her second affidavit (sworn on 14 March 2005) the applicant gave a detailed commentary on the CCTV videos. In relation to the first video, Ms Salamon identified the person at the office door and entering the office as Mr Gary King whom she had known for two to three years. The applicant stated that Mr King brought in a video player for herself and her staff to watch movies during quiet times. The applicant did not refer in the affidavit to any arrangement she had with Mr King whereby she accepted Mr King's cash against bets to be phoned in by him at a later stage. 138 In relation to the second video, the applicant gave a detailed explanation of her arrangement with Mr Gale: One of my regular customers at the Jannali agency was Mr Jason Gale. Mr Gale, or on occasions his wife, would leave money with the agency to be placed on bets as directed by him. Mr Gale from time to time would telephone me or send me a text message informing me where to place his bets. Mr Gale or his wife would collect his winnings from time to time from the agency... Late on the afternoon of 4 February 2004 I received a text message from Mr Gale to place a bet on the twilight dog meeting on his behalf. That day the agency was closed at 6.00 pm (actual time). That afternoon Mr Gale requested that I put three of four bets on for him for the dog meeting. As requested by Mr Gale I placed those bets. One bet was a winner and paid out approximately $750.00. While placing the bets and waiting for the results I took down the race wall sheets from the agency as part of my closing. Whilst employed as a relief agent I have been informed on a number of occasions by the owners of those agencies that it was an acceptable practice to extend the office opening time if there were customers in the agency having a bet. I am aware that you can extend the office hours by adjusting the agency closing time thereby avoiding the need to reinitiate office close. However once you get close to three to five minutes to closing time the TAB system does not allow you to use the adjust office closing time. Therefore as a practice, in order to keep the office open, one needs to reinitiate the office close every three minutes or sooner. If you do not do so a silent alarm will sound at TAB head office. On this afternoon I reinitiated the office close so as to enable Mr Gale's bets to be placed. I have reinitiated the office close on several occasions for customers and I have never been told by anyone at TAB that this practice should not be done or that I should stop doing it. I am aware that the agency opening and closing is monitored by TAB head office... The applicant proceeded to give a detailed description of everything she is shown to be doing on the CCTV footage. 139 During the applicant's cross examination she was taken to the record of interview of 29 March 2004 at a point where she was shown the CCTV footage of Mr King coming into the office area carrying a video. The applicant was taken to that part of her answer to Mr Hunter and Mr Goldsworthy where she stated that the person in the video dropped money off and rang later and his wife may or may not come in to collect the list. The applicant agreed that the arrangement she was there describing was with Mr Gale. She was not describing any arrangement she had with Mr King: Q. "Because this guy comes in...(read)", you could see he is carrying a video in his hands, you could see that on the video? A. We could see him carrying something, but they didn't know what it was so I told them what that was.

Q. And that was Gary King? A. It was Gary King.

Q. And he was bringing a video machine in for you to watch movies? A. Later on in the afternoon.

Q. When it was quiet? A. Yes. Q. And then the person asks you some questions because he could see him carrying something, and you said, "Yeah, he comes in and brings a video...I will give you a ring." Do you see all that? A.Yes.

Q. Now that, I want to suggest to you, was what you say Mr Gale did and you had that arrangement with Mr Gale? A. Yes.

140 The applicant was then asked if she had such an arrangement with Mr King. Ms Salamon replied, "He had done it twice before, but it wasn't on a regular basis like Mr Gale, but I didn't think that was anything too important." 141 In relation to the applicant's evidence regarding betting arrangements she had, primarily with Mr Gale and to a lesser degree Mr King, the respondent submitted: The applicant was completely at a loss to explain why it was that she started to describe the arrangements she had with Mr Gale when she was observing Mr King on the video. The applicant's testimony ... was entirely unconvincing. Her demeanour was that of a person who was prepared to continue in the witness box with a story she had earlier made up in order to respond to the allegation that there was evidence that she had been betting at the Jannali agency in contravention of her agency agreement. The respondent submits that there can be no other explanation for her answer I honestly don't know why, your Honour, I mentioned that, because Mr King's wife had never come into my agency. Jason's wife had and she would leave money behind the counter for him, but never did Mr King's." ... It is open to the Court to find that the alleged arrangement with Mr Gale never existed. Mr Smith has given sworn evidence that it never existed with him. A statement, apparently signed by Mr Gale, was provided to the respondent by the applicant, describing the alleged arrangement the applicant had with Mr Gale. There is no reference in that statement to the arrangement being a continuation of an arrangement Mr Gale had with Mr Smith. Mr Smith has given sworn testimony, albeit hearsay, that Mr Gale had rung him and said that he had been called into the applicant's then solicitors' office and asked to sign an affidavit that he had had a prior arrangement with Mr Smith to take bets on credit or to hold cash and ring back through. Mr Gale apparently said that he had never had such an arrangement and was not prepared to sign any statement to that effect. To the extent that Mr Gale may have been able to confirm the arrangement that he allegedly had with the applicant, he has not been called into the proceedings to do so. It is open to the Court to conclude that Mr Gale's evidence would not have assisted the applicant's case. It is open to conclude that the arrangement with Mr Gale never existed and that the applicant was seen on the CCTV footage placing bets on her own behalf. Exhibit Q provides some evidence of otherwise unexplained movements of money in and out of one of the applicant's bank accounts via the EFTPOS terminal at the Jannali TAB agency, which correspond to a particular pattern of betting that was occurring at the agency on 2 October 2003. Even if it is accepted that the arrangement between the applicant and Mr Gale (and presumably Mr King) did exist, and that the evidence is insufficient to demonstrate that the applicant was placing bets on her own behalf, it is still beyond doubt that the applicant was acting in breach of a clearly stated policy of the respondent with which she had contracted to comply. This breach was sufficient cause for the respondent to terminate the applicant's agency agreement. 142 I acknowledge that the applicant's evidence regarding Mr King and Mr Gale was confusing, which made it less believable. Moreover, the applicant did not call Mr Gale to give evidence and no reasonable explanation was provided as to why he was not called. Nevertheless, I do not consider there is sufficient evidence for me to find that the story regarding Mr Gale was a fabrication and that Ms Salamon was betting on her own behalf. In that respect, I do not place much store in Mr Smith's evidence that he did not have an arrangement with Mr Gale. Mr Smith's evidence that he was not aware he was talking to Ms Salamon when he phoned the Jannali agency is difficult to accept. 143 Ms Salamon has admitted that she was placing bets for customers. The applicant claimed, however, that she had held cash and placed bets for customers at the Bondi Beach agency, that the TAB was aware of this and that she was "never ever ever (sic) told what I was doing was wrong." 144 In the interview on 29 March, after viewing the videos, Ms Salamon stated that she did not know it was against TAB's policy to hold cash on a customer's behalf. Earlier in the interview, and prior to being shown the videos, Ms Salamon stated that she was aware of the TAB's policy that "You're not allowed to hold tickets or cash on behalf of customers" and she confirmed that she was became aware of this by way of "…all the operating instructions" which she had read. 145 At one point in the interview after seeing the videos Ms Salamon gives the explanation that she had customers that leave money behind the counter and they send her messages to place bets. The applicant then asserted, "…I've been through all the operating instructions and I know for a fact there's nothing to say that you cannot do that…" Later in the interview the applicant said, "I know that you're not meant to hold tickets and let them bet off that because they haven't collected the ticket yet." And again a short time later in the interview the applicant said, "...it doesn't say in the operating instructions that you can't hold money for a customer and I've gone through all the compliance things..." and, "I know you're not allowed to hold tickets for customers. I know that." 146 As to the applicant's attempts to distinguish between the holding of tickets and the holding of cash for customers, the respondent submitted that the difficulty for the applicant in maintaining this position was that the prohibition against holding cash and tickets is stated simultaneously in the Cash Office Manual. The applicant's proposition that having "…gone all through the compliance things…" she was aware that holding tickets was prohibited but believed that holding cash was allowed was simply untenable, it was submitted. I agree. 147 Ms Salamon was asked in cross-examination about the apparent contradiction in her interview where she stated prior to seeing the videos that she knew there was a prohibition about holding cash and tickets and after the interview said she did not. Q. Would you go to page 32, line 35 [of the interview transcript]? Mr Goldsworthy again raised with you this policy against holding cash and you there say: "No, I didn't know", that you didn't know every TAB policy. Would you accept that you earlier agreed that you did know? A. Like I said before, they didn't specifically say what policy they were asking me, if I was aware of all TAB policies and procedures and I said "yes."

Q. That's not true. Let's go back to page 4 [of the interview transcript]. He put it to you earlier, at the bottom of page 4, you were not being asked about all TAB policies and procedures, you were being asked about a reasonably specific issue and that is, I will read the whole thing: Only one cashier and you are not allowed to hold ticket or cash on half of customers; answer "yes"? A. I don't know why I said "yes."

Q. Because it's quite contrary to what you say at page 32, isn't it? A. Not at all. As I said before, I was doing it at Bondi and I was never ever ever (sic) told what I was doing was wrong.

148 In my opinion, Ms Salamon was well aware of the policy that holding tickets and cash for customers was prohibited under the published procedures of the TAB. The question then becomes whether she genuinely believed that, despite the prohibition, the holding of tickets and cash for customers was a practice that was, nevertheless, tolerated by the TAB. In this respect, the applicant relied on her experience at the Bondi Beach agency on 9 February 2003. 149 It is possible that, arising out of the incident at Bondi Beach, the applicant was left with the impression the arrangement that was entered into with the customer on that occasion was not the preferred way of dealing with the customer but that if it was done there would be no repercussions. Mr Jeff agreed under cross-examination that Mr Mather used the phrase "preferred method" to describe coupons and conceded this could have misled the applicant into thinking holding cash for the customer and keeping a tally of his wins and losses was not a practice that was banned. Moreover, no disciplinary action had been taken against Mr Fowler in relation to the matter. 150 On the other hand, Mr Fowler described the incident with the big spending punter as a "one-off" situation: It was a guy walking in with about $50,000. Now this just doesn't happen. So - and for him to have a bet of say $2,000 bet each way for us to count it out is too difficult. What we did is we took the money off him, counted it and then had it behind the counter; if we had him in the public space it was $50,000 it would have been inviting a robbery. It would have been unsafe so we secured it behind the counter and kept a running total and did it that way. 151 Mr Fowler said that the situation had not arisen again at his agency and he did not hold cash behind the counter for customers any more. He said that he understood that if he did so his agency could be terminated. 152 Thus, the circumstances at Bondi Beach involved a customer wanting to bet a large amount of cash money on different races whilst the customer was at the agency. Mr Mather and Mr Jeff were called to the agency to investigate the large turnover that was occurring. They directed Ms Salamon to hand back to the customer the money she was holding for him. There was something of a fuss and the customer complained. None of this was in dispute. 153 The circumstances at Jannali were quite different. There were no large amounts of cash involved and Ms Salamon was taking the bets over the phone. She must have been alerted by what occurred at Bondi that, at the very least, the practice of holding cash for customers was not something the TAB encouraged. Mr Fowler got the message; he did not do it again. One must query why Ms Salamon did not get the message. If she was required at Bondi to hand back the money she was holding for the customer, much to the annoyance of a big spending customer, surely it would have alerted Ms Salamon to the possibility that holding cash for customers was not permitted, especially when she was aware of the TAB's written policy in this regard. There must have been a doubt in Ms Salamon's mind about the legitimacy of the practice and the prudent and sensible thing to do would have been to check with the TAB. 154 Nevertheless, termination of the Agency Agreement on the basis of the betting arrangement with customers was on the borderline of being unfair given the harsh consequences for the applicant in circumstances where it would have been open to the respondent to give the applicant the benefit of the doubt. However, I have come to the conclusion, on balance, the contract was not unfair in that it enabled the respondent to terminate the agreement on the basis of the applicant's conduct in connection with the betting arrangements with a customer. Whether the restraint clause of the Agency Agreement was unfair

155 There were no submissions by either party about whether the restraint provisions of the Agreement were unfair. Accordingly, I do not propose to consider those provisions in cl 18 of the Agreement. 156 The applicant made the point, however, that given the reasons for terminating the Agreement it was apparently TAB policy she would never be re-employed by the TAB or appointed ever again as an agent and implicit in that submission was that such a policy was unfair. 157 It would appear the TAB's policy according to an extract from "TAB on Tap" is that: No person who has ever had their services or Agreement terminated by TAB Limited as a result of theft, fraud or other offences under the Act, Regulations or TAB procedures will ever be re-employed by TAB limited as a full or part-time permanent staff member or as an Agent. 158 The applicant's Agency Agreement was not terminated "as a result of theft, fraud or other offences under the Act [or] Regulations..." I am not sure what is meant by an offence under "TAB procedures". 159 I should note that I have not made any affirmative findings of dishonesty or fraud by the applicant. It is unfortunately the case for the applicant that she has been unable to satisfy the Court on the balance of probabilities that the Agency Agreement was unfair. 160 My opinion is that a permanent ban on the employment of the applicant or appointment as an agent, given the Court's finding in this matter, would be unfair. But it is not clear that the TAB has, in fact placed a permanent ban on the applicant. Whether or not such a ban has been imposed, the TAB should give consideration to the prospect of having Ms Salamon re-employed with an agent whose integrity is beyond question. After a suitable period, consideration could then be given to Ms Salamon's appointment as an agent, subject to any undertakings the TAB considers appropriate. Orders

161 The Court makes the following orders: (1) The application for relief in this matter is dismissed. (2) The applicant shall pay the respondent's costs of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

AMENDMENTS HISTORY: 30/05/2006 - Paragraph 32 and 54 - Paragraph(s) Paragraph 32 and 54

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