John Wiltshire v Direct Home Loan Corporation Pty Limited and others [2005] NSWIRComm 265

John Wiltshire v Direct Home Loan Corporation Pty Limited and others [2005] NSWIRComm 265

The contract was unfair because it did not adequately provide for timely payment of commission and did not provide reasonable notice where the respondents' conduct made them the real and effective initiators of the termination. The applicant was exploited through repeated unfulfilled promises, underpayment and conduct that made continued employment intolerable. A two month notice period was appropriate, and the second and third respondents were liable because they were directly involved in and benefited from the contract.

Jurisdiction
Australia
Judgment Date
28 July 2005
Procedural Posture
Application Under Section 106 of the Industrial Relations Act 1996 / Ex Parte Hearing; Judgment and Orders
Outcome
Contract held to be unfair; contract varied and monetary, interest and costs orders made against the respondents jointly or severally.
Legal Topics
['unfair Contract' 'unpaid Commission' 'reasonable Notice of Termination' 'payment in Lieu of Notice' 'constructive Dismissal' 'costs']
['industrial Relations' 'employment Law'] ['unfair Contract' 'unpaid Commission' 'reasonable Notice of Termination' 'payment in Lieu of Notice' 'constructive Dismissal' 'costs']

Case Brief

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Procedural Posture

Application Under Section 106 of the Industrial Relations Act 1996 / Ex Parte Hearing; Judgment and Orders

Legal Issues

  1. 1 ["Whether the applicant's contract of employment was unfair because it failed to make adequate provision for timely payment of commission." "Whether the applicant was effectively forced to resign by the respondents' conduct and therefore entitled to reasonable notice or payment in lieu." 'Whether relief should be ordered against the second and third respondents as directors who benefited from the contract.']

Ratio Decidendi

The contract was unfair because it did not adequately provide for timely payment of commission and did not provide reasonable notice where the respondents' conduct made them the real and effective initiators of the termination. The applicant was exploited through repeated unfulfilled promises, underpayment and conduct that made continued employment intolerable. A two month notice period was appropriate, and the second and third respondents were liable because they were directly involved in and benefited from the contract.

Court Disposition

Contract held to be unfair; contract varied and monetary, interest and costs orders made against the respondents jointly or severally.

Orders

  • ["The contract of employment between the applicant and the first respondent is varied to provide for a period of two months' notice of termination of employment to be given by the respondents or any one of them or payment in lieu thereof, calculated on the applicant's total annual remuneration." 'The contract of...