Shane Mitchell-Calvert v Yahoo! Inc

APPLICANT: Mr J.N. West QC with Mr I.M.Neil of counsel SOLICITORS: Haywards Ms P. Costigan LEGAL REPRESENTATIVES: RESPONDENT: Mr B.W. Walker SC with Mr R.A. Dick of counsel SOLICITORS: Phillips Fox Ms D. Healy

JUDGMENT: - 35 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date: Fri 22 June 2001

IRC4135 of 1999 SHANE MITCHELL-CALVERT v YAHOO! INC Application under s106 of the Industrial Relations Act 1996

JUDGMENT 1 This application is brought under the provisions of s106 of the Industrial Relations Act 1996 (the Act). Mr Shane Mitchell-Calvert, the applicant, alleges the contract which he entered into with Yahoo! Inc, the respondent, in its terms and/or in the alternative, in its performance, was unfair, harsh and unreasonable. It is alleged: (a) The contracts made no, or no fair, provision for the respondent to give notice of the termination of the contracts or make payments in lieu of such notice; (b) The contracts made no, or no fair, provision for the respondent to compensate the applicant for the loss of his employment and the prospects that it offered to him; (c) The contracts allowed the respondent to impose unfair, harsh, unreasonable and arbitrary obligations on the applicant during the course of his employment; (d) The contracts make no, or no fair, provision, for the grounds in which the applicant's performance was to be assessed and evaluated; (e) The contracts make no, or no fair provision for the grounds upon which the applicant's employment could be terminated; and (f) Such other grounds as the Commission considers fit. 2 The applicant claims: (i) Twelve months salary at $3,333 per month; (ii) Bonus $20,000; (iii) Interest on both payments; (iv) Options from 15 December 1998 vesting up to 21 December 2000; and (v) Options vesting after 21 December 2000. 3 Mr J.N. West QC with Mr I.M. Neil of counsel appeared for the applicant and Mr B.W. Walker SC with Mr R.A. Dick of counsel appeared for the respondent. The applicant gave sworn evidence and relied upon a significant amount of documentation in support of the application. The respondent relied upon the affidavit evidence of eight witnesses of whom two were required for cross examination. A significant further amount of documentation was tendered. 4 As to the options claim, the applicant alleges his right to a monthly tranche of 1250 options from 18 December 1998 to 21 December 2000 should be vested to him and, in accordance with his practice of purchase and on-selling immediately, the employer pay to him their monetary value at the date of termination. He claims the monetary value of options due to him to 21 December 2000 and claims the options due to him after 21 December 2000 be vested to him for the four year period as agreed. The Employment 5 From 1987 to 1997 the applicant worked as a sales person in advertising through the medium of television and newspapers. He specialised in the "classified directory" advertising industry. In January 1997 the applicant was interviewed for a position as "Interactive Advertising Specialist" with Ziff-Davis UK Limited, a joint venture partner with Yahoo! UK. The applicant began work with Ziff-Davis. In June 1997 the applicant was approached by Heather Killen, then Vice-President of Yahoo! International, with the offer of a position as a sales executive working directly for Yahoo! UK. The applicant accepted this offer of employment. A term of his employment agreement with Yahoo! UK was he was to be given credit for his service with Ziff-Davis. The applicant worked very successfully for Yahoo! UK negotiating bookings for Internet advertising. 6 On 30 October 1997 the applicant informed Yahoo! UK of his intention to resign from his employment and immigrate to Australia. Yahoo!'s Sales Director for Europe, Mr Philippe Guillanton, who was very supportive of the applicant, endeavoured to keep the applicant working with Yahoo! UK. Arising out of a number of conversations, Ms Killen, Vice-President of Yahoo! International, the USA based company, then approached the applicant proposing that he stay with Yahoo! UK at least to the end of November 1997 to finalise an important sales deal and in return she would assist him in obtaining work for Yahoo! Inc in Australia when he migrated here. Yahoo! Inc had begun its operations in Australia and New Zealand in September 1997. 7 In accordance with her promise, Ms Killen arranged for the applicant to meet with Mr Tony Faure, the General Manager of Yahoo! Inc in Australia. This meeting took place in San Francisco. Arising out of these negotiations an agreement was reached that the applicant stay with the UK company until the end of November 1997 to finalise the particular sale. He would then take a "leave of absence" from the end of November until April or May 1998 to travel through Europe and then to immigrate. On arrival in Australia it was agreed he could negotiate an employment contract with the respondent in Sydney. This arrangement was put in writing in the following terms:

Per our recent discussions, the following is an outline describing your pending personal leave of absence. You have requested a leave of absence to begin on November 28, 1997. The leave of absence will be unpaid and you will not accrue vacation during your leave. Your stock options will cease vesting on 11/29/97. Upon your return in April or May 1998, our intention is to employ you in our Australian office as an Account Manager. As we have discussed, you will relocate yourself to Australia and resume discussions with Tony Faure regarding this position after your arrival to Australia. If you and Tony both agree on this position and you become employed with Yahoo! Australia, you will resume vesting in the stock option program upon your return, and will be credited for vesting lost during your leave after you remain with the company for at least the period of time equal to the time you were on leave. In the event we are unable to employ you in Australia as discussed, you will resign from Yahoo! and your stock options will be forfeited. Please let me know if you have additional questions relating to your leave of absence. Please sign below noting that this information has been discussed with you and return it to me.

Sincerely (signed) Beth Haba Human Resources Director

8 The applicant began his leave of absence, in accordance with this agreement, in November 1997. Before he left the Yahoo! UK operation, he brought to finalisation a lucrative contract with Hewlett Packard in France, the sponsors of the World Cup Soccer Competition to advertise on the Yahoo! Internet site. It was the biggest Internet advertising contract yet achieved, worldwide. 9 On 4 May 1998 after enjoying his leave and re-settling in Australia, the applicant struck an employment agreement with Yahoo!'s Australian operation and began working with the respondent's operation in Sydney. Prior to beginning this work, in May 1998, the applicant had met Mr Craig Lambert, the Sales Director of Yahoo! Australia and New Zealand, under whom he would be working. The contract of employment in the Australian operation was entered into with the US parent company which was still guiding the fledgling Australian business, namely, Yahoo! Inc. The contract was not in writing. The contract allowed for a salary of $50,000 per annum, a $20,000 bonus and options under the Share Option Plan. 10 When the applicant began work in Australia there were few established customers of Yahoo! Inc. That being so, the applicant was required to "cold call" clients. The company policy was to book "short term" advertising space to enable it to build up a client base. The plan was to then pursue the bigger advertising contracts. The applicant needed to do his own market intelligence and information work. He was given a list of companies by Mr Lambert most of whom, by name, he did not recognise. In making "cold calls" he had to deal with clients who were neither familiar with the Internet nor the new advertising medium on the Internet. 11 Mr Faure, the General Manager of Yahoo! Inc in Australia, advised the applicant of the difficulties he would find, as a transposed English-born sales person in addressing the Australian business management personnel. This advice was based on Mr Faure's own experience when he came from England to work in Australia. He discovered personnel in Australian management were most welcoming to sales persons but, he warned, such a welcome did not necessarily reflect in sales. 12 The applicant began work in May 1998. By October 1998 the applicant's sales figures were disappointing and Mr Lambert, the Sales Manager, was expressing concern. The applicant himself was sufficiently concerned to ask for and he received a formal review of his performance. Within the Yahoo! Inc business there was a formal procedure for a review of performance. 13 There are two phrases used in the industry which become relevant when an examination of the documents relied upon by both parties, as to the applicant's sales performance, is made. There is first a document called an "Insertion Order" which is a document completed by the salesperson to record an order for advertising space. However, a booking does not represent "Revenue Recognition", namely, payment for advertisements run, that is, an order does not always proceed to a sale of advertising space. Sometimes there is a cancellation and sometimes there must be significant follow up calls to firmly secure the order. Sometimes the terms of the order change. In the Internet advertising industry forward bookings are not made months in advance, therefore revenue flows quickly for short space advertising. 14 An examination of the bookings made by the applicant through the months he worked with Yahoo! Inc, the respondent asserts, reveals many of his Insertion Orders did not reflect in Revenue Recognition. The respondent submits, although significant bookings through Insertion Orders were recorded by the applicant, the bookings did not eventuate or were not finalised in the terms and size reflected in the applicant's original Insertion Orders.

15 There was much conflicting evidence led as to the real advertising figures earned by the applicant in his eight months employment until termination. Both the applicant and Mr Lambert agreed, while Insertion Orders are used to assess a sales person's performance on a month by month basis, Revenue Recognition, that is, realised sales and monies in, are the valid test to determine the success of a salesman. 16 By September 1998 the applicant admitted he was disappointed with his own performance. The applicant had conversations with Mr Lambert who expressed to him concern at his poor sales performance. Evidence persuades the court by September 1998, the applicant had been told bluntly Yahoo! Inc wanted, from him, more sales. Such a demand I do not believe was unfair. It is agreed a salesman must be judged by his sales figures and, by the end of September 1998 the applicant had been with Yahoo! Inc five months. The respondent, through Mr Fauve, opined three months was the period of grace generally held as a fair duration of time for a salesperson to settle into a new sales environment. He considered the three months time span also allowed for a settling in period for the applicant in a new country. I accept this view.

17 Mr Lambert as Head of Sales gave evidence he had expressed concern as to the applicant's sales figures by late July 1998. Mr Faure agrees by August/September 1998 he had begun to discuss with Mr Lambert the applicant's performance.

18 The court had before it many of Yahoo! Inc's official documents alleged to represent both the recorded sales made and the income earned by the applicant. The bookings made by the applicant through Insertion Orders were tendered. The company's records, as to his Revenue Recognition, were also before the court. Both parties prepared documents arising from the primary documents to support various submissions.

19 The applicant relied on the documentation to assert he was a good salesman who, in Australia, earned significant sales. Yahoo! Inc challenged this claim asserting the applicant did not perform well as a sales person during the entire period in which he was employed. A number of bookings became the focus of the applicant's claim he performed well particularly after the October performance review. For example: OzBooks, Fuji Xerox, Bing Lee and Central Equity Limited. The applicant, in defence of his sales record, relies upon recorded sales and seeks the assistance of a comparative study of the sales he made with the sales record of the respondent's best salesman, a Mr Galvin, and with the recorded sales figures of Mr Lambert.

20 An examination of the documentation relied upon by both parties reveals a significant margin of error contained therein. The records of sales were used to define the success of sales persons. However, this documentation has proven to be unsatisfactory and unreliable. The applicant alleges the perception of Mr Lambert that he was not a successful salesman, a perception that led to his termination, was unsound because the documentation, upon which Mr Lambert relied to make this decision, was inaccurate. The applicant submits, after his performance review in October 1998, his sales increased dramatically. 21 In any consideration of the applicant's performance, it is fair to note Mr Galvin and Mr Lambert had begun work for the respondent eight months before the applicant. Further, by inference, it can be stated they had brought with them sales experience in the Australian environment. They had also established a presence for Yahoo! Inc in Australia in the months in which they had been working and the applicant enjoyed some little benefit from this. However, I do not consider it fair to rely on the comparisons. Mr Lambert's evidence revealed he was both a sales person on the road and the sales manager often in the office performing managerial duties. Mr Galvin was well established in his sales position by the time the applicant joined the company. 22 An in-depth examination of two of the contracts worked on by the applicant, which he asserts were bookings of a significant nature - one for OzBooks for $26,005 and the other for Fuji Xerox for $35,250, was conducted. These are but two of the examples relied upon by the applicant to support the proposition his sales techniques were beginning to work in the Australian work environment. However, evidence also revealed further work had to be done on both bookings after the applicant left the employ of the respondent. That is, his Insertion Orders did not reflect real sales.

23 The reliability, however, of the respondent's records was also successfully challenged. For example, from evidence in an independent trade magazine monitoring Internet advertising, Ozbooks had a number of advertisements running in November and December 1998 on the Internet yet the company's record is marked "Entire booking written off." This infers no sales were achieved. 24 The applicant seriously challenges the figures the respondent submit are his sales figures in his last months of employment and especially the figures for December 1998. The applicant during December was spending a significant amount of time on a Fuji Xerox contract. It was finalised by him in December. However this Insertion Order would not show in his Revenue Recognition until the following month. Mr Lambert agreed any sales booked by the applicant in November and December would not show in Revenue Recognition records until the new year.

25 The court finds it is not necessary to make a series of particular findings as to the status of each sale relied upon by both parties in the comparisons placed before it. The court rejects the proposition of the applicant his performance must be measured against the sales performances of Mr Galvin and Mr Lambert. From the evidence, the court finds by October 1998 the applicant had recognised his sales performance was not good. He was not achieving the 10 outside calls required weekly and he was not building up positive internal relationships. I accept he needed to increase contact with existing clients. Mr Lambert identified these problems in the performance review noting the applicant had not given enough focus on the sales process; there was low activity by the applicant; there was a lack of urgency in the applicant to close deals; the applicant was recording sales at expected levels only through incorrect Insertion Orders; Insertion Orders for bookings were showing a low reliability level; there was a failure by the applicant to meet levels or goals and there was no team work. All these issues were canvassed in writing with the applicant in the formal review. The applicant did not accept all areas of criticism as fair or as accurate. 26 However, the court finds from the documentary evidence, between October and December 1998, there was a marginal improvement in the applicant's sales figures. Nonetheless, the evidence also reveals some of the Insertion Orders recorded by the applicant as sales needed to be reviewed and did not produce the revenue expected.

27 In November 1998, the respondent for the months of November and December "arbitrarily, unrealistically and unfairly", as acknowledged by counsel for the respondent, set sales targets for the applicant. These targets were based on Revenue Recognition figures and not on Insertion Orders. The applicant was given a target of $50,000 for sales in November and $70,00 for sales in December 1998. Such targets, the court finds, were unachievable. Targets set unilaterally, based on Revenue Recognition rather than on an estimate of earnings from the sales booked through Insertion Orders were, of their nature, unachievable and unfair. I reject the respondent's submission such targets were reasonable or if arbitrary not reflective of unfair conduct in the performance of the contract.

28 All of these circumstances led to the applicant being spoken to on 11 December 1998 by Mr Lambert as to his unsatisfactory performance. Before the court was contemporaneous documentary evidence that Mr Lambert had intended to terminate the applicant at this interview. His intention was known to Yahoo! Inc in America and endorsed by Mr Fauve. At the interview the applicant, however, persuaded Mr Lambert to allow him time to finalise an OzBooks' booking for advertising space which the applicant claimed would be worth up to $150,000 to Yahoo! Inc. Mr Lambert allowed the applicant to continue. Mr Lambert acknowledged, in evidence, it was in the company's interests for the OzBooks deal to be brought to conclusion.

The Termination 29 It was within this working environment, the applicant joined the other sales personnel and company people, with their partners, for a Christmas weekend at a resort called Peppers in the Hunter Valley from Friday 18 December 1998. The organisers had requested, from each employee, a statement giving a description of their partners. Such a description was to canvass the partner's stated job, their personality, their favourite activity, food, drink, "whatever"! The document was to be in 25 words or less. The request was couched in the following terms by way of an email to each employee: Could you provide me with a twenty-five word description of your mate/chick. A further e-mail stated: Why? None of your business. No information was provided to employees that the description of their "mate/chick" was to be published. 30 The applicant provided a short description of his partner as requested. They attended the weekend conference. Games were compulsory. No one had been told so. The purpose of the games was to enjoin the group in a spirit of team work. The partner, however, on her arrival, had read the description of herself in a document that had been distributed. It caused her some distress. As would be normal, she expressed this distress to her partner, the applicant, who seemed shocked at seeing his short descriptive analysis of her in print. Her distress caused him to miss the first series of games organised as a team bonding session. 31 During the games, Mr Lambert spied the applicant upon a hill with his distressed partner and was "furious". He demanded the applicant reveal why he had not participated in the team games. When the applicant explained his partner's distress Mr Lambert became even more "enraged". Mr Lambert explained his reaction saying the applicant was expressing concern at the publication of a document the applicant himself had brought into existence. Mr Lambert later expressed the view that having met the partner he found she, on three separate occasions, had committed "some sort of unacceptable social incidence in public". Mr Lambert said he was concerned for the company. From the evidence there could be an inference cast he felt and expressed the view the partner was "neurotic".

32 In an admitted fury Mr Lambert expelled the applicant from the weekend conference. He sent the applicant and his partner home with instruction to prepare for a discussion between himself and the applicant on the Sunday evening after the conclusion of the conference.

33 The decision to terminate the applicant was made by Mr Lambert as he drove back to Sydney from the Hunter Valley on the Sunday. On the drive, Mr Lambert said, he considered the applicant's behaviour at Peppers, the applicant's sales activity and the applicant's sales performance. He said of the applicant he had: . . . fallen very short of both his November and December revenue targets. and that the applicant had: . . . still not succeeded in solving the problems with the OzBooks account. 34 There had already been a corporate decision in early December, made by Mr Lambert and Mr Faure and communicated to head office in America, to terminate the services of the applicant as his sales figures were not satisfactory. At that time, in an attempt to assess the problem, Mr Faure had stated in an email to Yahoo! Inc head office: . . .he just ain't cutting the mustard and shows no signs of so doing. I think - in the end - that he doesn't have a real salesperson's instinct (he'd rather be a 'consultant'). Mr Faure said of the December interview Mr Lambert was to have with the applicant: . . . we're trying to smooth the way for as dignified an exit as possible. The email also referred to the applicant's sales as "only . . . slightly better." 35 On the Sunday afternoon, at the arranged meeting, it is agreed Mr Lambert told the applicant in effect "resign or be sacked". The applicant wrote out a resignation which, in its terms, was corrected by Mr Lambert. The applicant at the time of termination had been paid two weeks in advance. On termination, the respondent determined this two weeks' pay should be converted to two weeks' pay on notice. The applicant was also paid for leave accrued, bonuses earned and the value of his share options up to the date of termination, namely, 20 December 1998.

The Contract 36 The applicant's contract in England with Yahoo! UK was in writing and signed on 24 June 1997. The employment commenced on 2 June 1997. The applicant's employment with Ziff-Davis UK Limited from January 1997 was counted as continuous service when he began to work directly for Yahoo! UK. He was given credit for this six months' service. The applicant's leave of absence agreement was also put in writing by way of a letter from Yahoo! Inc, the American Parent Company, dated 24 November 1997 (set out in para 7 above).

37 The contract of employment in Australia was between the applicant and a different corporate identity from Yahoo! UK, namely Yahoo! Inc. 38 At issue before the court is what were the terms of the contract of employment between the applicant and Yahoo! Inc for his employment in Australia. The court finds the letter of 24 November 1997 forms part of the Australian employment arrangement. It allows the incorporation into the applicant's employment contract in Australia, the Yahoo! Stock Option Plan as varied by the letter of 24 November 1997.

The Contract of Employment and the Stock Option Plan 39 Early in the applicant's employment with Yahoo! UK, the applicant requested details as to his share option package which, by agreement, was part of his employment contract. Two documents were forwarded to him. The first was a notice of his personal grant : YAHOO! INC 1995 STOCK PLAN NOTICE OF STOCK OPTION GRANT

SHANE MITCHELL-CALVERT You have been granted an option to purchase Common Stock of Yahoo! Inc., a California corporation (the "Company"), as follows: Date of Grant: July 8, 1997 Vesting Commencement Date: 06/02/1997 Option Price Per Share: $39.75 Total Number of Shares Granted: 5,000 Total Price of Shares Granted: $198,750.00 Type of Option: ____________Incentive StockOption X NonstatutoryStock Option ___________ Term/Expiration Date: 07/08/2007 Vesting Schedule: This Option may be exercised, in whole or in part, in accordance with the following schedule: 25% of the Shares subject to the Option shall vest and become exercisable on the first yearly anniversary of the Vesting Commencement Date. Thereafter, 1/48 of the Shares subject to the Option shall vest and become exercisable on each monthly anniversary of the Vesting Commencement Date, such that the Option will be fully vested at the end of four years following the Vesting Commencement Date. Termination: This Option may be exercised for a period of 30 Days after termination of employment or consulting relationship except as set out in Sections 7 and 8 of the Stock Option Agreement (but in no event later than the Expiration Date).

40 The second document was headed "Stock Option Agreement". Relevantly, Clause 6 of the Stock Option Agreement is headed "Termination of Relationship" and it states: In the event of termination of Optionee's Continuous Status as an Employee or Consultant, Optionee may, to the extent otherwise so entitled at the date of such termination (the "Termination Date"), exercise this option during the Termination Period set out in the Notice of Grant. To the extent that Optionee was not entitled to exercise this option at the date of such termination, or if Optionee does not exercise this Option within the time specified in the Notice of Grant, the Option shall terminate. Further, to the extent allowed by applicable law, if Optionee is indebted to the Company on the date of termination, Optionee's right to exercise this Option shall be suspended until such time as Optionees satisfies in full any such indebtedness. And Clause 11, headed "No Additional Employment Rights" reads: Optionee understands and agrees the vesting of Shares pursuant to the Exercise Schedule is earned only by continuing as an Employee or Consultant at the will of the Company (not through the act of being hired, being granted this Option or acquiring Shares under this Agreement.) Optionee further acknowledges and agrees nothing in this Agreement nor in the Plan which is incorporated in this Agreement by reference, shall confer upon Optionee any right with respect to continuation as an Employee or Consultant with the Company, nor shall it interfere in any way with his or her right or the Company's right to terminate his or her employment or consulting relationship at any time, with or without cause. 41 In its terms therefore, the first grant of shares to the applicant was not vested or exercisable until the first anniversary of the applicant's employment and the allocation of shares was made monthly thereafter to full vesting at the end of four years. The purposes of the plan was stated as follows: . . to attract and retain the best available personnel for positions of substantial responsibility, to provide additional incentive to Employees and Consultants of the Company and its Subsidiaries and to promote the success of the Company's business. . . . 42 The applicant, at the beginning of November 1998, in accordance with his contract of employment in Australia, became entitled to 25% of his share allocation. He immediately exercised his right to purchase the options and on-sell the shares. There was a procedure put in place by the company to allow this practice. He did the same with a tranche of 1240 options which, under the contract, were vested to him in early December 1997. In the arrangement with Yahoo! Inc, no money changed hands and the agreed strike price was deducted from the sale price. The applicant received approximately $1.3 million in this exercise in accordance with the terms of his employment contract.

The Contract of Employment as to Notice 43 The original contract of employment between the applicant and Yahoo! UK as to notice stated: During your probationary period one week's notice of termination is required on either side. On successful completion of this time, your notice increases to one month, applicable on either side.

The company reserves the right to make a payment in lieu of notice. 44 The notice provision in the Australian employment contract was not in writing. On page (xii) in the Yahoo! Inc Handbook, under the heading "Employment at Will," contains a statement as to notice: Employment with Yahoo! is voluntarily entered into, and you are free to resign at will at any time, with or without cause. Similarly, Yahoo! may terminate the employment relationship at will at any time, with or without cause.

Ironically the document then states: Policies set forth in this Handbook are not intended to create a contract, nor are they to be construed to constitute contractual obligations of any kind or a contract of employment between Yahoo! and any of its employees.

Further, under the heading "Leaving the Company", there is the following: If you voluntarily resign, we ask that you give us a written notice two weeks in advance, whenever possible. This professional courtesy allows Yahoo! to make arrangements to continue work without burdening co-workers and possibly to arrange for the training of new personnel. If you furnish a two-week notice, Yahoo! may elect to pay you two weeks salary and terminate your employment immediately. If Yahoo! elects to do this, it does not alter the fact of your resignation. The applicant agrees he saw this Handbook when he was employed by the respondent in Australia. Other evidence was led as to what was the implied notice provision in the employment contract. Relevantly, the applicant's remuneration was paid monthly, two weeks in arrears and two weeks in advance. The applicant further revealed when in London he gave two weeks' notice to the respondent of his intention to leave and immigrate to Australia, yet the notice clause in his UK employment contract required one month's notice.

45 The respondent submits, as to notice, the court should infer from the evidence there was a two week's notice provision in the contract or alternatively infer the common law principles into the contract and the court should hold the contract required "reasonable notice" in the circumstances and that such reasonable notice was two weeks.

46 The applicant alleges the contract was unfair in its terms in not having a defined term as to notice. The applicant submits company booklets, relied upon by the respondent to infer a two week notice provision in the employment contract, cannot be held to indicate a reasonable notice provision of two weeks was incorporated into the contract. Consideration as to Jurisdiction under s106 47 Before any determination as to whether this contract is unfair in its terms and/or performance, there must be consideration of the respondent's attack on the jurisdiction of the court to hear this application under s106 of the Act. The respondent in its submission as to jurisdiction relies on the protection provided by s109A of the Act and the powers of the court under Part 6, ss83 and 84 of the Act. The respondent submits the facts reveal this application could be brought under Part 6 of the Act for unfair dismissal proceedings. The sections of the Act relevant to this submission are: 109A Exclusion of certain contracts in connection with unfair dismissals (1) This Division does not apply to a contract of employment that is alleged to be an unfair contract for any reason for which: (a) an application has been or could have been made by the employee under Part 6 (Unfair dismissals), or (b) such an application could have been made but for the provisions of section 83 that exclude the employee from making an application under that Part.

(2) In this section: " contract of employment " means any contract or arrangement under which work is done by a person in the capacity of an employee, and includes a related condition or collateral arrangement with respect to such a contract. " dismissal " has the same meaning that it has in Part 6.

83. Application of Part (1) This Part applies to the dismissal of: (a) any public sector employee, or (b) any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations).

84. Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. 48 Section 109A excludes from s106 relief contracts of employment where an application could have been made by the employee for unfair dismissal under Part 6 (s109A1(a)) or could have been made under Part 6 but for the exemption as to annual remuneration in accordance with the prescribed rate (s109A1(b)). The effect of s83(1)(b) excludes from jurisdiction under s106 of the Act a claim for unfair dismissal for employees whose "annual remuneration" is greater than the prescribed amount, namely, $62,500. It is also relevant to note that "contract of employment" is defined so as to include a related condition or collateral arrangement with respect to the contract (s109A(2)).

49 The respondent submits s106 is a provision to relieve against a particular state of affairs, namely, an unfair contract. As to the contract, it does not matter whether there were two contracts or one employment. The respondent concedes there was a contract of employment in Australia which, by dint of the dealing between the parties, allowed the appointment of the applicant to a sales role in Australia. The respondent concedes the Australian appointment allowed rights under the stock option plan and the plan was part of the applicant's employment package. 50 The respondent submits, on the facts, s109A removes this dismissal from the ambit of a s106 claim. The effect of s109A places a "winding back" on the s106 provision. Therefore, s83 and s109A need to be construed narrowly. The respondent argues the effect of s109A of the Act is to allocate different remedies under the Act for different kinds of claims and, in this case, the dismissal should properly be read as a s83 claim for compensation/reinstatement for an alleged unfair dismissal and the applicant in the circumstances has available to him the extraordinary and important remedy of "reinstatement" under s83.

51 The respondent relies on the evidence the applicant was paid a "salary" of $50,000 and submits the application therefore falls within the ambit of s83 for relief arising from an allegation of unfair dismissal. It is the respondent's further contention the option plan which gives the applicant a right to acquire shares for a specified price at a specified interval bestows simply a "right" upon the applicant and is not to be categorised as "remuneration". The respondent submits, as the options were only picked up by the applicant on election, they cannot be termed as the part of the applicant's "remuneration" as required under s83 of the Act. The respondent submits one cannot value this option right and, as the applicant's salary was under $62,500 (s83(1)(b)) in accordance with the Act the court would find this matter is, in effect, an unfair dismissal case under s83 of the Act.

52 As to the options, the respondent submits this was a valuable right in a rising stock market which was referred to as a time of "E-commerce madness." However, the respondent submits it only granted a "right" to options. The associated payment for that right under the plan did not come out of the pocket of Yahoo! Inc but out of the pocket of those who were paying great prices for Yahoo! stock in the marketplace. The involvement of the company in the issue of share capital as a company balance sheet item was acknowledged but allegedly of no consequence to the submission. 53 The share option plan, the respondent further submits, cannot be part of any "annual" remuneration as the grant of shares vests over a 4 year period. The applicant's annual remuneration under the contract was a straight salary payment of $50,000. The respondent distinguishes between the salary paid and "package benefits" which come from this employer to an employee for work done at a profit to be realised. 54 The respondent also relies on the authority of Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648 (at 692) where the Full Bench of the Commission as to the effect of s109A held: In short, our view is that s109A operates to exclude a contract of employment from the operation of s106 only where the unfair contract claim is an unfair dismissal claim in disguise and where essentially it is of the nature of an unfair dismissal.

The respondent submits this claim is an unfair dismissal claim in disguise. 55 The respondent places much emphasis on the submission that the applicant's annual remuneration does not, on the facts, deny the applicant a claim under s83 as this applicant's annual remuneration should be viewed simply as the $50,000 annual salary paid to the applicant which brings him within the ambit of a s83 claim.

56 The question before the Court cannot be whether this matter should have been brought under s83 but rather is there jurisdiction to hear the application under s106 of the Act given the effect of s109A of the Act.

57 There has been much learned judicial consideration applied to the term "remuneration". In the Australian industrial system the term "remuneration" comprehends more than simply wages or salary and has been held to include non monetary benefits (Condon v G James Extrusion Company (1997) 74 IR 283 at 285-9 applying Wilcox CJ, May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112 at 116).

58 The Industrial Relations Commission of NSW in Kagan and Primus Telecommunications (Aust) Pty Ltd (No 2) [2000] NSWIRComm185 [at 9] as to the meaning of "remuneration" recently adopted another State Full Bench decision of Shead v Summit Western Pty Ltd t/a Blacktown Mitsubishi (1998) 81 IR 347 and its conclusion that the term "remuneration" as used in Part 6 of Chapter 2 of the Act is: . . . in its ordinary broad sense as comprehending an employee's total package as a reward for the work performed. In Kangan , the Full Bench canvassed many of the authorities which have examined the effect of the term "remuneration" and determined the payment of superannuation benefits in excess of statutory requirements were incorporated into an employee's annual remuneration under s83(1)(b).

59 The facts reveal the applicant was employed under the contract of employment for eight months. He was paid, within that eight months, his percentage of the agreed salary of $50,000 and over $1.3 million realised from the sale of shares vested. Payments to him in his eight months employment were well over the prescribed rate. I reject any argument that because the full grant of shares was vested over four years this cannot be perceived as "annual" remuneration (s83(1)(a). Vesting had occurred within the first year of employment by the applicant with the respondent, in accordance with the employment contract.

60 Further, the stock option plan acknowledged the purpose of the share allocation was an "incentive payment" As the respondent put in place an arrangement for the on-selling of the shares a proper inference can be drawn it was intended to be a financial incentive. It cannot be held the shares were of the nature of a right when on the facts a considerable number of shares had been vested and on-sold. Throughout the further years, the plan allowed shares to be vested to the applicant on a month by month basis. These would give the applicant an annual financial benefit if he chose to on-sell.

61 Consideration as to incorporating extra benefits into a determination as to a person's "remuneration" where the benefit is not a direct result of the employee's endeavour but is as reward for work performed was given judicial consideration in Skailes v Blue Anchor Line Limited (1911) 1 KB 360 (at 375). This early authority examined whether a bonus and a profit on sales should be taken into account in estimating a ship's purser's remuneration. As to the profit on sales it was held: . . . Agreed additional remuneration contingent on a quick passage, or on a dividend exceeding 5 per cent, would clearly fall within the word "remuneration" in the Act, although the quickness or the increased dividend depended on luck and were independent of the employee's own conduct.

62 Although the extra benefit, be it a right or a payment for the shares, was independent of the employees' conduct, it was agreed additional remuneration as a reward for work the applicant performed. In accordance with the broad concept of remuneration and in accordance with authority that non-monetary benefits can be included in an assessment of remuneration, whether the shares be perceived as a right or a payment, the shares should be considered as part of the applicant's annual remuneration.

63 The applicant's remuneration for 1998 was well in excess of the statutory bar to any claim under s83 for unfair dismissal. As the Act allows no claim for an unfair dismissal for persons whose annual remuneration is greater than $62,200, the court finds the applicant is not covered by the unfair dismissal provisions of the Act, namely, s83 and s84.

64 Of greater significance in this deliberation as to jurisdiction is the statement of the Full Bench in Beahan v Bush Boake (at 692) where the court went further to comment: Where a claim challenges the terms or operation of a contract of employment by genuine, not superficial or coloured, reasons related to the contract itself then, in our view, it is a claim properly within s106 and s109(A) has no operation in relation to it.

65 I find further the statutory bar of s109A(b) does not apply to exclude this application under s106 of the Act. From the evidence I find the applicant has mounted a genuine, not superficial, attack on the contract. Generally as to the contract, the applicant submits the conduct of the respondent in the performance of the contract at the date of termination in the circumstances amounted to a constructive dismissal. The applicant submits such circumstances must found a basis for a finding of unfairness in the performance of the contract. It was further unfair conduct by the respondent, the applicant submits, to arbitrarily impose targets on him which were unachievable. Further, the respondent's assessment of the applicant's sales achievements was unfair in the circumstances where the applicant was assessed with reliance placed on unreliable records indicating, it is alleged, not his true achievements. The applicant also attacks the term of the contract as to notice. I find the court has jurisdiction to hear this application under s106 of the Act and this application could not be held to be an unfair dismissal claim in disguise. I find there has been mounted a genuine, not superficial or coloured attack on the contract in both its terms and performance. Consideration as to Unfairness 66 In determining under s106 whether the contract is unfair in its terms or performance, having found jurisdiction, the court is guided by the principles enunciated in Port Macquarie Golf Club Limited v Stead & Anor (1995-1996) 64 IR 53). The Full Bench in examining the effect of a similar provision, namely, s275 of the Industrial Relations Act 1991 to s106 of the Industrial Relations Act 1996 held the court must make an examination of the particular facts of the case (at 59): 6. Unfairness may arise either from the terms of the contract or arrangement itself, the surrounding circumstances and/or from the manner of performance or operation of the contract or arrangement: Barry v Incitec Limited (1991) 45 IR 143 at 146; Incitec Limited v Industrial Court of New South Wales (1992) 45 IR 155 at 157-158; and Baker v National Distribution Services Ltd (1993) 50 IR 254 at 270-271. 67 In applying the test for unfairness the Full Bench guides the court to take (at 59-60): 7. . . . the commonsense approach characteristic of the ordinary juryman by applying standards providing a proper balance or division of advantage and disadvantage between the parties who have made the contract or arrangement, bearing 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: Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371 at 374: A & M Thompson Pty Ltd v Total Australia Ltd [1980] 2 NSWLR 1 at 13; and Baker at 271-272.

68 As to the issue of unfairness, the respondent submits conduct may be unfair conduct but such conduct does not necessarily demonstrate any unfairness in the employment contract. The respondent relies on the minority judgment of Glynn and Schmidt JJ in Reich v Client Server (1999-2000) 99 IR 69 [at 176-178]: It follows that the relief which s 106(5) contemplates, is relief flowing from the contract found unfair on the evidence and not merely any unfair conduct, which may or may not demonstrate the unfairness of the contract under review.

Here the conduct complained of was found by his Honour to be in breach of the contract. The appellant did not appeal from that finding. There is of course every possibility that in the circumstances of a particular case conduct constituting a breach of a contract of employment will also throw light on the unfairness of the contract or arrangement in question, which is thereby amenable to relief under s106 of the Act. Westfield, Harcourt Brace and Cukeric all fall into these class of cases.

As we have noted these earlier cases are also authorities for the proposition that a refusal to consider the case sought to be advanced by an applicant under s106 of the Act, because conduct complained of also amounts to breach of the contract, is an error which may well amount to a refusal to exercise jurisdiction.

69 Mr West QC on behalf of the applicant submits the court in its consideration should be guided by the decision of the majority in Reich v Client Server where it was held as to conduct [at 24]: . . . in finding a contract (contract or arrangement, or any related condition or collateral arrangement) to be unfair, that may be supported because it became an unfair contract due to the conduct of a party at the time of the termination of the contract which enabled a finding that a contract which could or did so operate was relevantly unfair. It would then be open to declare the contract void or to make an order varying its terms in an appropriate way, with as to either form of relief a consequential order for the payment of money considered to be just in the circumstances.

And [at 27] that the submission that: . . . "unfairness in a contract is demonstrated by unfair conduct that is consistent with the contract" is only partly correct but to which should be added "unfair conduct that is inconsistent with the contract". We accept Mr Murphy's approach to this aspect, namely, as he said, "conduct by an employer which is unfair and which breaches the employment contract, even though not permitted by the terms of the contract ... would nevertheless render such contract unfair and amenable to relief. Such approach is entirely consistent with the language of s 106(2)." We would only add the comment that to us it seems an utterly arid exercise in semantics to find conduct as part of the operation of a contract to be unfair but not thereby to find also the contract to be unfair because such unfair conduct was not permitted by the otherwise fair contract -- we think it should be stated as plainly as it may be, and as we think the authorities and s106(2) do, that a contract may be found to be unfair because of any conduct of the parties. (emphasis added) 70 The applicant, as to unfairness, relies upon evidence of the conduct of the respondent in the performance of the contract as to the targets set and the circumstances of the dismissal. They further submit there is an unfairness in the term of the contract as to notice.

71 Generally as to the dismissal, the respondent conceded there was a lack of dignity attached to the pre-Christmas events both related to the length of time given to the applicant as to notice and what was the motivation for the decision to terminate. The respondent conceded the circumstances of the termination reveal what could be perceived as a constructive dismissal. The words of Mr Lambert "resign or be sacked" it was conceded provide a text book example of a constructive dismissal. However, such lack of dignity in the circumstances related to the resignation, while it may demonstrate unfair conduct, does not demonstrate any unfairness in the contract under review, submits the respondent. 72 As to the unfairness related to Notice, the applicant relies on the decision in Westfield Limited & Anor v Helprin (1997) 82 IR 411 (at 434) where the court examined a notice provision and held: . . . a contract of employment which contains a term requiring the giving of reasonable notice of termination, whether that is an express or implied term of the contract, is not, for that reason, necessarily immune from consideration under s275. In an appropriate case, orders varying or declaring such a contract void may properly be made under the section, together with orders as to the payment of money in connection with the contract so varied or declared void as is just in the circumstances of the case in an amount which might at least be partly referable to the circumstances of termination. Their Honours in Helprin also had to consider an option scheme and held (at 435): . . . the option scheme may be regarded as an "arrangement" collateral to the contract of employment or as part of an "arrangement" of which the contract of employment also forms part. On either view, it comes within the purview of s 275 (see Legal & General Assurance Society Ltd v Stock (1993) 49 IR 465 at 480-481.) With due respect to his Honour, however, we differ from his view that the option scheme was not itself unfair, harsh and unconscionable within the meaning of the section.

His Honour took the view the primary purpose of the scheme was to provide an incentive to executives to remain with Westfield and that it was in the nature of a windfall. We think that, in coming to this conclusion, his Honour paid insufficient regard to the evidence given by Mr Lowy in cross-examination that there were three purposes of the scheme - first, to reward employees for their past efforts; secondly, to provide them with additional remuneration in the future; and thirdly, to operate as an incentive to remain in Westfield's employment. The second of these aspects was emphasised in correspondence sent from time to time by Mr Frank Lowy to Mr Helprin.

73 I reject the submission of the applicant that he was not given any warnings as to concerns about his sales performance. From the tone of the email in November 1998, from Mr Lambert's evidence of conversations and the content of conversations with the applicant and from associated documents to the performance review including the two written documents, one by the applicant and the other by Mr Lambert, the court is persuaded the applicant was made aware of concerns as to his performance. The court is persuaded the applicant was aware the respondent was not satisfied with his sales figures, or the way he was conducting his sales work. Further, the respondent had expressed concerns as to the applicant's tardiness in refusing to perform "cold calls" and his spending much of his time preparing presentations and staying office-bound. The court finds the applicant was not performing his duties in a manner satisfactory to his employer by October 1998 and the respondent had placed before the applicant, in detail, the specific concerns related to his performance in the October Review.

74 I find, however, the setting of unachievable sales targets for the applicant in November and December 1998 and this setting of targets being based not on bookings through Insertion Orders but on Revenue Recognition, that is, money-in, were arbitrary, unreasonable and reflect as unfair conduct by the respondent in the performance of the contract.

75 Further the court accepts the circumstances of the applicant's dismissal reveal this was in effect a constructive dismissal. The ostensible act of termination was not given freely and not without undue pressure. In effect, the resignation, was brought about by the employer (See Allison v Bega Valley Council (1995) 63 IR 68 (at 72-73); Day v Lumley Life Limited (1999) 90 IR 70 at 93). As was said in Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32: . . . a contract of employment (which) permits a situation to occur in which the contract is terminated unfairly may render the contract itself unfair.

There was an unfairness in the circumstances requiring the applicant to sign a resignation in a heated environment and for an employer to dictate the terms of that resignation. 76 As to the notice provision, the respondent submits this is a contract under which notice could be given to terminate employment without cause. The respondent submits it is simply impossible to be certain what was the term of the contract as to notice but, taking into account the two weeks notice the applicant gave when he announced he was leaving the UK to immigrate to Australia, the court should find notice, under the terms of the contract, was two weeks and such a term was reasonable and complied with by the respondent on termination. In the alternative, the respondent submits if the common law principle of reasonable notice is inferred "reasonable notice" cannot of its nature be held to be an unfair provision of an employment contract. If such a proposition is relied upon by the applicant then, Mr Walker, on behalf of the respondent, submits a claim "I was entitled to reasonable notice and did not get it," cannot found a claim under s106.

77 From the evidence there exists a number of alternative propositions, all arguable, as to what was the notice provision in this contract. Such a dichotomy in itself represents as an unfairness in the terms of the contract. Further the respondent's conduct in determining, at large, that the notice under the contract was two weeks and the respondent's cavalier conduct in converting the two weeks salary paid in advance to the applicant as a two weeks payment as to notice I find are circumstances contributing to a finding there was an unfairness in the conduct of this contract. The court has already found the conduct of the respondent in the performance of this contract, as to the circumstances of the termination and the setting of arbitrary targets, was such as to make this contract unfair.

78 As was held in Port Macquarie Golf Club Limited v Stead & Anor (at 60) if a contract is found to be unfair under s106: (8) . . . then the next question involves the exercise of a discretion, to be performed judicially, as to whether the contract or arrangement should be avoided or varied: Hodges [1985] 11 IR 60 at 62-63; Autobake [1986] 19 IR 18 at 20; and Baker at 267.

(9) If it be decided to avoid or vary the contract or arrangement under s275(1) then a further discretion arises as to whether an order should be made under s275(3) for the payment of money in connection with the contract or arrangement declared void or varied: Hodges at 63; Autobake at 20; and Baker at 267. I find the circumstances of the case reveal unfair conduct by the respondent. Such unfair conduct together with the unfair term as to notice requires a finding there should be a variation to the contract. In the use of the court's discretion the court determines the term of the contract as to notice should be declared void ab initio. 79 In a consideration as to whether it is just to give a monetary order, the court is mindful, as was Schmidt J in Gallagher & Anor v Modern Garages Australia Pty Ltd (In liquidation) & Ors [2000] NSWIRComm 184 [at 110], of the caution of Sheldon J in Davies v General Transport Development Pty Ltd & Ors [1967] AR (NSW) 371 (at 374-5) that under s106: . . . such massive power makes it imperative that it should be exercised with proper restraint. Further, in Newton v Goodman Fielder Mills Ltd (1997) 81 IR 227 (at 239) the court examined the task of determining a monetary amount in connection with a contract that was found to be unfair and the Full Bench held such consideration requires: . . . the exercise of a broad judgment without the assistance of defined and identifiable parameters or heads of loss or damage.

80 I find it just in the circumstances to order a monetary payment. Their Honours in Westfield v Helprin (1997) 82 IR 411 allowed monetary orders in circumstances somewhat similar to those before this court (except as to the length of service of the applicant and the applicant having no warning as to termination). Their Honours held (at 439): ... the question of whether that discretion should be exercised in relation to the question of notice arises for consideration in the context of all of the circumstances before us, which include the other orders which we have decided to make in relation to the giving of a warning before termination and the option scheme and the orders as to the payment of moneys which flow from those variations.

Their Honours made their consideration in the context of all the circumstances of the case and held: (at 437): The monetary order we propose to make in this regard will reflect that entitlement, and the opportunity to sell the shares on the same day, allowing only for notional stamp duty on acquisition and brokerage on sale. 81 In this consideration I take into account the applicant worked under this contract for eight months. I also take into account the respondent's act in incorporating into the applicant's employment contract in Australia accumulated rights for his service from June 1997 to November 1997 and his service from May 1998 to December 1998 as reflected through the variation to the Stock Option Plan. This gave the applicant great benefit. The court includes in its consideration the likely conduct of the applicant that the options would be exercised and on-sold in one step. 82 It is just in the circumstances the employment contract between Mr Mitchell-Calvert and Yahoo! Inc be varied. The term as to notice shall be declared void ab initio and a term as to fair notice of two months be inserted into the contract.

83 Accordingly, it is just in the circumstances to allow for the applicant to exercise the proportion of his options which would have vested in him over the period of operation of this reasonable notice period on termination. The contract, incorporating the Share Option Plan, should be so varied to reflect this alteration to the plan. 84 This determination requires a further consideration as to the respondent's submission that, in today's economic climate where the market value of the shares in Yahoo! Inc is down, any orders as to on-selling of these shares ensures the employer must pay the value. This, the respondent submits, would be unfair. However, evidence revealed the applicant was perceived as a "gun" salesperson. He had, before coming to Australia, signed the biggest worldwide contract for Internet advertising. Common sense would reveal the market price for the employment of such a salesperson was beyond the salary payment of $50,000 relied upon by the respondent as proper remuneration. Yahoo! Inc pleads the payment as to the proposed order would now come out of its own pocket and that would be unfair. It could be argued however Yahoo! Inc was using the marketplace to subsidise payments for the employment of this worker as the option plan revealed part of the purpose of the plan was to provide "additional incentive to employees". The court finds it is just in the circumstances to give orders of the nature considered fair in Helprin.

85 The court orders, in accordance with the practice entertained by the applicant to on-sell the shares after vesting and purchase, the respondent to pay to the applicant the value of the shares in the market place at the date of vesting, namely, on 6 January 2000 and 6 February 2000.

86 As to interest, the respondent submits the applicant should not be ordered interest from the date of termination. The respondent submits the applicant should not be entitled to such a payment until any variation to the contract is ordered as the applicant, on resignation, never complained about the length of time as to his notice and therefore there was no opportunity for the respondent to consider this issue until the filing of this claim. As to the proposition advanced by the applicant that he is entitled to interest at least from the date of issuing of the summons, the respondent submits, in this case it is a windfall to the applicant from the respondent's allocation of a right. Therefore, the respondent submits there should be no orders as to interest. 87 The court has considered the submissions and determines interest should be paid on all payments arising from the proposed orders from the date of filing of the summons in accordance with the reasoning and approach taken in Abboud v State of New South Wales (Department of School Education) (No 2) (2000) 99 IR 299 [at 306-307] per Schmidt J (dissenting but accepted by Wright J, President and Walton J, Vice-President at 373; [2000] NSWIRComm100 [44-49].

ORDERS 1. The contract of employment between Mr Mitchell-Calvert and Yahoo! Inc be varied from 20 December 1998 to require Yahoo! Inc to give the applicant two months' notice upon termination. 2. The Option Scheme be varied from 20 December 1998 to provide upon termination of employment by Yahoo! Inc, Mr Mitchell-Calvert be entitled to exercise the proportion of his options which reflects the period of the operation of the option scheme during notice. 3. Yahoo! Inc to pay Mr Mitchell-Calvert two months' salary attributed to the failure of Yahoo! Inc to provide a period of not less than two months notice of termination.

4. Yahoo! Inc to pay to Mr Mitchell-Calvert an amount equivalent to the amount which Mr Mitchell Calvert would have received had he exercised his grant of option from 20 December 1998-20 February 1999 under the option scheme and assuming the applicant on-sold the shares that day, allowing only for stamp duty on acquisition and brokerage fees on sale.

5. Yahoo! Inc to be given no credit for the two weeks payment made to the applicant in advance of salary. 6. Yahoo! Inc to pay interest to Mr Mitchell-Calvert on the amounts payable by it in accordance with s84 of the Supreme Court Act, 1970 such interest to run from the date of filing of the summons to the date of judgment. 7. Yahoo! Inc to pay the applicant's costs as agreed or assessed.

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