Kindly acknowledge your acceptance of the position offered by signing the attached offer copy and forwarding it by return facsimile to Jo Scorer on 02 9517 9744.
7 On the following day, Mr Phair sent to the applicant, by facsimile, the job specification for the position of financial controller. The principal areas of responsibility for the position, according to the document, included the preparation of monthly accounts for the respondent, as well as a number of other related companies. In addition, the applicant was responsible for the annual budgets, annual accounts and taxation schedules, premises management, staff control and training and employment, computer management insurance, fixed assets schedules, and a number of other responsibilities which extended to the respondent's Fijian interests.
8 The respondent was one of a number of companies of which Marinya was the holding company. As at April 2000, the respondent's business had three components, namely, a magazine distribution unit, a new books distribution unit and a second-hand (remainder) books distribution unit. The first named unit accounted for 38% of the respondent's business, the second and third units approximately 14% and 48% respectively. Australian Consolidated Press (ACP) was a major supplier of the respondent's magazine distribution unit and as at April 2000, represented about 75% of that unit's work.
9 The applicant commenced work for the respondent on 14 May 2000. At that time, the respondent employed about 23 employees, four of whom worked full-time processing invoices and handling accounts payable and receivable. The applicant was required to check the work of these four employees and otherwise supervise them in their day-to-day work activities. The applicant also completed the financial accounts and reports for April to August 2000 inclusive, including the necessary supporting documentation and schedule and the 2000/2001 profit budgets. The reports concerned not just the respondent, but its subsidiaries which consisted of Corporate Express International Pty Limited, World of Learning Limited and TB Clarke Fiji.
10 Mr Phair and Mr Austin recall in their affidavits that some time in June 2000, ACP advised them that from the end of July 2000, the respondent would no longer have its magazine distribution work. According to Mr Phair, the loss of the magazine distribution work had a number of consequences. Corporate Express International, a freight forwarding business, lost about 40% of its work. The respondent's Fijian branch also had its work significantly curtailed. The applicant says that as a result of the loss of the ACP work, Corporate Express International was closed, and that he assisted in closing the business. These matters, according to the applicant, reduced the business to a single operation with greater profitability because the operating costs were far less and there was a greater focus on the remainder books business (which had apparently generated more profit than the other units).
11 The respondent in light of the loss of the ACP work decided to review its operations. Mr Phair conducted the review initially in June 2000 and later in July and August 2000. One of the results of the review was a decision by Mr Phair that the respondent no longer required a person to perform the work of a financial controller on a full-time basis. He met with the applicant, he says, on 30 August, and informed him that because the ACP work had been lost, a number of positions would have to be made redundant, including the applicant's position. The applicant denies that the meeting took place. Mr Phair says a second meeting took place on 11 September 2000 during which he told the applicant that he anticipated his employment would end in about mid-November. Mr Phair says the applicant told him that he would need to start applying for other positions. The applicant also denies that this meeting took place.
12 On 3 October 2000 a meeting took place between the applicant and Mr Phair, at which the applicant's termination of employment was discussed. Mr Phair suggested that the applicant should work until either 10 or 17 November 2000. The applicant asked Mr Phair whether he would receive an ex gratia payment. Mr Phair said: