100000160

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES PARVIS MEHDIZADEH NADERI V KUJANNA PTY LTD ACN 008 938 092 T/AS WATSON & CAPARARO

CORAM CHIEF COMMISSIONER W S COLEMAN

DELIVERED  TUESDAY, 1 AUGUST 2000

FILE NO/S  APPLICATION 1624/1999

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Result    Claim for denied contractual benefit dismissed

Representation

Applicant  Mr B Stokes

Respondent  Ms S Laferla

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REASONS FOR DECISION

1          The applicant Parvis Mehdizadeh Naderi was employed as a real estate sales person with the respondent company Kujanna Pty Ltd ACN 008 938 092 trading as Watson and Capararo from January 1998 until April 1999.  He claims payment for outstanding commissions on five properties sold during the first six months of his employment (Exhibits 9 and 11) ($3317.93).  A further amount of $880.74 is claimed as outstanding commission on another property at Lot 6 Seymour Street settled after his departure from employment with the respondent company.  The commission on that property was calculated and paid on the basis that the property was subject to a “conditional offer”.  The applicant claims that the offer was “unconditional”.

2          The respondent opposes and rejects both elements of the claim.  It submits that all entitlements were paid in accordance with the terms and conditions under which the applicant was employed including the property at Lot 6 Seymour Street.

3          Mr Naderi had previously been employed in real estate in Perth.  He and his wife decided to shift to the country.  He visited Albany and made enquiries with various agencies as to the state of the industry and his likely prospects.  In the course of that investigation he spoke with Mr D Pearson, a principal in the respondent agency.  Mr Naderi subsequently saw an advertisement for an appointment as a real estate salesperson.  The notice identified that the appointment was on the basis of “retainer plus commission”.  Although applications closed on 9th January 1998, Mr Naderi presented at the respondent’s office the following day and was interviewed by Mr R Giraudo, the other principal.  It is Mr Naderi’s evidence that at the conclusion of their discussion after the rates of commission had been discussed Mr Giraudo reaffirmed that a retainer of $250 per week was payable.  It was Mr Naderi’s evidence that this payment was promoted by Mr Giraudo on the basis that is was a “bonus to keep you going.”  According to the applicant it was recognised that it would take some time for a new salesperson to get established.  The retainer was in his view an incentive which would secure the services of the right person.

4          It was put to Mr Naderi that Mr Giraudo would be saying that in the discussion that took place at the beginning of January that the range of options concerning commission only, a representative’s advance offset against commission subsequently earned and retainer were discussed.  Mr Naderi denies that any options were discussed.  He subsequently telephoned Mr Giraudo and confirmed his acceptance of the position.  Arrangements were made for him to start at a time convenient to his family being settled in Albany.  The only other contact Mr Naderi had with the respondent was when he attended a ‘home open’ and met Mr Giraudo.  This was on a weekend before he commenced work in the agency.  Mr Naderi states that on the basis of his employment with the respondent and his commitment to establish himself in Albany and in the real estate industry he leased a house for twelve months at $180 per week.

5          It is Mr Naderi’s evidence that a week or so after commencing employment he was presented with an employment agreement for his signature (Exhibit 5).  His evidence is that he did not sign the document; he took it home to read it and was satisfied that the commission rates were in accordance with what had been discussed with Mr Giraudo previously.  The fact that the retainer of $250 was not mentioned in the document was not raised by him.

6          In the course of his introduction to the respondent’s listings in Albany Mr Naderi accompanied Mr Giraudo on an inspection of properties to be sold.  Although he had leased a house, one of the properties on the respondent’s books appealed to the applicant.  He arranged to purchase the house at 21A Munster Street.  In the course of that transaction Mr Naderi wanted to make sure that he would receive some of the commission.  He recalled that in his interview with Mr Giraudo for the position of salesperson, mention had been made of special arrangements for representatives when they purchased properties through the respondent agency.  Mr Naderi claims that it was as a result of his inquiry concerning the commission on the house that he was purchasing that he became aware that the $250 weekly retainer was in fact an advance on commission and that for the first six months of his appointment, the weekly remittances would be offset against commission earned by him.  Mr Naderi claims that he said to Mr Giraudo “This is news to me” and that the position he had applied for had specified “retainer plus commission”.  Mr Naderi stated that he told Mr Giraudo that this was a misrepresentation.  According to Mr Naderi this discussion took place on or about 25th February 1998, the date on which he signed the offer to purchase the property at 21A Munster Street Albany.

7          Nothing occurred about the matter of the status of the weekly payments until 18th March 1998 when Mr Naderi claims he was presented with a document titled ‘Representatives Advance’ (Exhibit 7).  This was given to him by Mr Pearson.  It is Mr Naderi’s evidence that he expressed disappointment to Mr Pearson but was told “That’s the way it is.”  Mr Naderi claims he signed the document but expressed the view that he may have to leave.  He states that he was in no position other than to sign the agreement.  He had entered into a lease for twelve months on the house he occupied.  The rent was $180 per week.  He was committed to the purchase of the property at 21A Munster Street and he had other financial commitments.  Mr Naderi claims that he had entered into employment on the basis of a commission structure plus a $250 per week retainer.  He had been forced to sign the Representative Advance on 18th March under duress.  The Representative Advance provided for the payment of $250 gross per week for a maximum of six months.  It goes on to state that:

“Commission claims will be paid once the accumulated dollar amount of the claims have in effect cleared the total amount of the advance paid.  Once the accumulated advance amount has been cleared, then the amount of commission over and above that amount will be paid.

The $250 gross per week payment will begin from the 16th February 1998.  Therefore the amount requiring repayment before commissions will be paid, will begin accruing from the 16th February 1998.  The only commission that is exempt from the above, is the commission payable on 21A Munster Avenue, Albany.  This will be paid at the normal rate.  All other commission claims will firstly be allocated to paying off the accrued advance, the remainder, if any, of the commission claim will then be paid to the Representative.

For any deals with a contract date outside the six months the Representative will be paid the full regular commission, regardless of the amount of advance still requiring reimbursement.  All deals with a contract date within the six months will still be used to repay the advance.  In the event that the employment is terminated before the six months is complete, any advance made that has not been reimbursed will be written off and is not required to be repaid.

The Representative may elect to go off the advance at any time, but must provide one month’s notice of his intention to do so.  Once the Representative has elected to go off the advance, he may not attempt to receive the advance again.”

(Exhibit 7)

8          A few days before the end of the six months during which the applicant was paid the weekly advance he was involved in the sale of a property at 677 Albany Highway.  Mr Naderi wanted to secure the full commission on the sale of that property although being within the period covered by the representatives advance he would not have been able to claim that entitlement.  He approached Mr Pearson about the matter but was told that he would be paid “according to the rules”.  Mr Naderi claims that a day or so later Mr Pearson approached him and pointed out that he had not signed the employment agreement (which had been given to him in February).  It is Mr Naderi’s evidence that Mr Pearson put to him that if he signed the agreement he would be paid the full commission.  Mr Naderi’s evidence is that Mr Pearson and Ms Marwick, the Administration Manager then attended his office and made sure he signed the document and initialled each page.  Although the document (Exhibit 5) is dated 18th February 1998 Mr Naderi claims that the signing took place in August 1998 and then under circumstances where if he wanted to be paid the full commission on the sale of the property he had to affix his signature.

9          From 16th August 1998 until his resignation from employment with the respondent company in April Mr Naderi was paid commission in accordance with the employment agreement tendered as Exhibit 5 and which he had received within the first four days of his employment.

10       Although Mr Naderi’s employment ceased on 3rd April 1999 he was paid commission on the sale of a property, Lot 6 Seymour Street, on which an offer was signed on 2nd April.  However the rate of commission was determined by the respondent agency to be on the basis that the offer was “conditional”.  The offer stated that it was “Subject to a planning consent for setbacks of a proposed single dwelling from the City of Albany within 45 days from the date of acceptance.”  (see Exhibit 10).  According to the respondent the offer did not become unconditional until 14th May 1999, long after Mr Naderi had left and taken up employment with another real estate agent in Albany.

11       Mr Naderi claims that after he had secured the offer on Lot 6 Seymour Street he attended the respondent’s office but because Mr Pearson was engaged with a client, Mr Naderi spoke with Ms Marwick.  It is his evidence that he asked her to inform Mr Pearson that although the offer document was conditional, the purchasers had assured him that regardless of the council decision they would buy the property.  According to Mr Naderi, Ms Marwick was told to be sure to tell Mr Pearson and to treat it as an unconditional offer.  It is his evidence that Ms Marwick assured him that she would.

12       The applicant’s claim is that he was appointed to the position of a salesperson on the basis of commission and retainer not commission and an advance.  The amount claimed is commission on sales of properties sold in the first six months of his employment without the advance being offset.  The other amount represents the difference between what he was paid on the sale of Lot 6 Seymour Street and the commission due on the basis that the sale was really unconditional from the time the offer was submitted.  On this final element of the claim a common exhibit was tendered.  This is a letter from Mr P.M. Drage, one of the purchasers.  In it he states:

“…On the 2-4-99 Paul (Mr Naderi) made an offer to the vendors for lot 6 Seymour St on our behalf, subject to a Planning Consent for a single dwelling.  There was never any doubt that Planning Consent would be granted and the sale would proceed to “settlement”.  Paul explained to us that he would be leaving Watson & Capararo before “Settlement Date”, but would manage the “Purchase” to conclusion, which he did to our complete satisfaction.”

13       The applicant presented evidence from Mr George Hunter, another real estate salesperson who had worked for the respondent company from June 1998 until January 1999.  Through Mr Hunter it was asserted that the respondent had duped him into relocating to Albany on the expectation of a level of income and commission on sales together with a $250 per week retainer that proved to be false.  It was Mr Hunter’s evidence that Mr Giraudo had promised him commission at rates of “26% for selling and 20% for listing” plus the weekly retainer.  The arrangement reflected a newspaper advertisement that invited applications on the basis of “retainer plus commission” (refer Exhibits 1 and 4).  It was not until Mr Hunter had taken up the position with the respondent company and had entered into domestic arrangements which tied him to Albany that he alleged he was presented with documents that made it clear that his retainer was paid on the basis of a reduced level of commission.

14       Mr Hunter never signed the employment agreement which was presented to him when he commenced employment.  He never raised any objection with his employers and “stuck it out” for a period of six months.  This coincided with the expiry of the lease on the house he occupied and the maximum period for which the retainer was payable.  Although the employment agreement provided that he could elect to go off the “advance” at any time with one months notice, he said that the circumstances of a salesperson trying to establish himself in a new town made it an untenable option to work on a “commission only” basis.  Indeed he believed that he would not sell a property in the first four months.

15       It was put to Mr Hunter that Mr Giraudo for the respondent company would be saying that options were presented to him for him to select the arrangement he wished to operate under.  Mr Hunter denies that to have been the case.  The benefits of an arrangement that would have given commissions at a level marginally higher than he received when selling real estate in Mandurah plus a retainer of $250 per week did not appear to Mr Hunter to be so remarkable.

16       Finally in the context of Mr Hunter’s “similar facts” evidence it was asserted that the respondent company had treated him unfairly in paying commission on a property at Lot 108 Regent Street in claiming that additional work had to be done in completing the deal.  This occurred immediately prior to his departure from the company.

17       In summary the applicant’s case is founded on the premise that the respondent company is a dishonest employer.  In support of this it is submitted that through a newspaper advertisement and undertaking given to him by Mr Giraudo, the applicant was duped into accepting employment on the understanding that he would receive a retainer plus commission.  This turned out to be an advance against commission.  Mr Naderi claimed he had to accept this arrangement because of the commitments he had entered into on relocating to Albany.  Also he needed the income from the commission on the sale of 21A Munster Street Albany.  It was in these circumstances that he had to sign the ‘Representatives Advance’ (Exhibit 7) on 18th March 1998.  Furthermore it is asserted that the employer had secured his signature on the employment agreement (Exhibit 5) immediately prior to the expiry of the period during which the advance was paid by holding out the inducement of payment of commission at the full rate on the sale of a property which in the normal course would have been discounted for the $250 per week payments.  Although the document was dated as being signed on 18th February 1998 according to the applicant it was not signed until August that year.

18       It was also inferred that the document had been tampered with to show that signing had occurred five months before the actual date it was executed.  Next it was alleged that the respondent company had either ignored advice or had manipulated the situation to hold the sale of a property as “conditional” from April until May 1999 under the guise of having to complete more work to lift the condition on the offer.  It thereby denied the applicant the opportunity to receive commission at a higher rate.

19       It was alleged that all of these practices, the publication of a misleading recruitment notice, the promise to recruits from outside Albany of arrangements for the payment of commission at a certain rate and a retainer or advance and the discounting of commission on sales completed after a salesperson had left employment were tactics followed by the respondent company in its dealings with at least one other salesperson.  Indeed it was asserted that there were other disgruntled salespeople who had left employment with the respondent company.  The case of a Ms Tulipan was cited.

20       The evidence presented for the respondent company directly contradicts that presented by Mr Naderi.  Mr Giraudo stated that all of the options concerning an appointment with the respondent company were given to the applicant at the interview in January 1998 when he presented in response to the newspaper advertisement.  The interview canvassed the arrangement whereby a retainer was paid on the basis of a reduced rate of commission for sales, listings and conjunctional deals.  According to Mr Giraudo the applicant was told that the arrangement operated for six months and in response to the question as to the basis of calculation, Mr Giraudo explained that it was worked out on a representative’s ability to earn $13,200 in commission in that initial period.  It was Mr Giraudo’s evidence that this prompted Mr Naderi to express the view that he could do better than that.  He then put it to Mr Giraudo whether he would consider an arrangement whereby Mr Naderi be paid an advance with commission at the full rate.  According to Mr Giraudo he indicated to Mr Naderi that he didn’t have a problem with the arrangement that had been proposed and that when Mr Naderi had decided which way he wanted to go Mr Giraudo and Mr Pearson would work in with him.  It was Mr Giraudo’s evidence that there was little risk in agreeing to Mr Giraudo’s proposal in view of the applicant’s experience in the industry including the level of income he claimed to have generated from sales in his then current position.  It was Mr Giraudo’s evidence that at the conclusion of the interview Mr Naderi had accepted the appointment of a sales representatives position with the respondent company.  The date he was to commence was still to be finalised.  As far as Mr Giraudo was concerned it was immaterial which arrangement Mr Naderi was going to work under, that was up to the applicant.  Apart from work for straight commission whichever other way Mr Naderi went the respondent’s liability was the same.  As a retainer or as an advance the respondent was committed to pay a total of $6500 for the first six months.  Even if Mr Naderi was unable to secure any sales in that period the $250 per week paid as a retainer or as an advance would be written off.

21       The issue of arrangements for Mr Naderi’s method of remuneration came up soon after he commenced employment.  According to Mr Giraudo when Mr Naderi was considering the purchase of 21A Munster Street he made it clear that he didn’t want it included in any arrangement that had been discussed at the interview.  Mr Giraudo recalled that Mr Naderi had cited the situation that if he purchased three or four properties the respondent would immediately recoup the money it had paid as advance and he would in effect be paying himself!  It was Mr Giraudo’s evidence that Mr Naderi had accused him of misrepresenting the situation at the initial interview and claimed that he had been promised a retainer of $250 per week plus full commission.  Mr Giraudo said that his response to Mr Naderi had been “no way in a blue fit because I told you when you first came here, that was the structure.  You put the addition of “Can I have an advance””.  It was Mr Giraudo’s evidence that the respondent would never do the sort of deal Mr Naderi was claiming for anyone.

22       The arrangement that Mr Giraudo understood Mr Naderi had promoted at the interview of an advance in lieu of the retainer and reduced commission was reflected in the document prepared for the respondent company by Mr Pearson.  It accommodated Mr Naderi’s requirement to exclude the sale of 21A Munster Street for the purpose of deduction from the advance.  The Representative Advance (Exhibit 7) was signed by Mr Naderi on 18th March.  That was after Mr Naderi had said to Mr Giraudo in their earlier discussion that he would “think about things”.

23       For the respondent it is accepted that the employment agreement was not signed on 18th February 1998 as the document states (Exhibit 5).  However Mr Pearson and Ms Marwick refute that it was executed in August that year.  For Mr Pearson the circumstances under which Mr Naderi was given the employment agreement were such that it was presented to him early in his employment, that was within the first few days.  In Mr Pearson’s view it is likely that the document included a third schedule which was subsequently detached as it was understood Mr Naderi was considering arrangements different from those which were probably on the pro forma copy.   Anyway as Mr Pearson had no direct knowledge of this it was merely supposition.  What he was adamant about was that Exhibit 7, the Representatives Advance had not been signed some four months before the employment agreement as Mr Naderi asserts.  Mr Pearson cannot recall when he signed the document but it was not in Mr Naderi’s presence.  He considers that it was executed some time between 16th February 1998 and 19th March 1998.  This position is based on the policy that advances would not be made until documents had been signed.  Mr Marwick confirmed the requirement under that policy but had to concede that it was not always followed.  The documentation regulating Mr Hunter’s employment had not been signed and he was employed after Mr Naderi had commenced employment.  However Ms Marwick gave evidence that when the sale of the property at 677 Albany Highway came up Mr Naderi had approached her and inquired about his entitlement to payment of commission.  She had sat down with him to check off the expiry date of his six month advance payments.  Ms Marwick claimed that to have been able to do that she would have had recourse to his employment agreement.  On this basis she concluded that the document would have been signed at that time.  Indeed she felt sure that the document had been signed around the time that the ‘Representatives Advance’ was executed.  In her view this would have been necessary for her to pay Mr Naderi.  To establish what arrangement he had entered into, she claims she checked the documents.  Ms Marwick categorically denied that she had engaged in any ‘cut and paste’ amendments or alterations to Exhibit 5, the employment agreement.  Ms Marwick has no recollection of attending Mr Naderi’s office in the company of Mr Pearson in August and standing over Mr Naderi to ensure that he signed the document as a ‘trade off’ for the payment of commission without the deduction of the advance payment of $250 per week.

24       On the claim relating to the commission on Lot 6 Seymour Street Ms Marwick did not recall any conversation with Mr Naderi about the purchasers treating the offer as unconditional.  Her recollection was that Mr Naderi approached her about his entitlement to commission on the sale of the property.  She recalled that he was not too happy about what he was told.

25       Mr Giraudo said that his dealings with Lot 6 Seymour Street involved a discussion with the purchasers when they attended the respondent’s office.  They had expressed concern about the time being taken to get planning approval.  A neighbour in an adjoining property had objected to the proposed construction of a parapet wall.  An appeal was considered but on Mr Giraudo’s advice the written withdrawal of the condition would enable the contract to go ahead.  Mr Giraudo stated that he had not previously received any notification from Mr Pearson that the offer was to be treated as “unconditional”.  Furthermore there was nothing on the file to indicate that was the case.  Mr Giraudo spoke to the purchasers, Mr and Mrs PM and JP Drage with his wife who worked in the office and was a partner in the respondent company.  According to Mr Giraudo his involvement in finalising the sale of the property included providing the purchasers with a draft letter withdrawing the requirement for planning approval and liaising with the other real estate agent who was involved in the sale on a conjunctional basis.  The offer was made unconditional on receipt of the letter from Mr and Mrs Drage dated 14th May 1999 (see Exhibit 10).

26       One of the most striking features of the case is that here in an industry requiring strict adherence to legal form and process in dealing with contracts for the disposal of real property, there appears to have been a distinct lack of formality when it came to establishing relationships for contracts of employment.  Real estate sales representatives commence employment on the basis of discussions.  When presented with contracts to sign after they have commenced duty they don’t bother about it or where agreements are executed it may be signed on a date unrelated to that specified on the document.  Subsequent variations may or may not be recorded.  In the administration of the contracts of employment the circumstances of one principal’s pending retirement appears to have involved transitional arrangements operating for over one year.  There was no continuity between interviewing prospective employees, finalising their contracts and executing the documents.

27       The evidence presented seeks to establish a number of facts.  Some bear directly on fundamental issues of what were the terms of the contract and others on incidents or actions which are supposed to establish or enhance the credibility of witnesses.  The onus is on the applicant to establish the terms of the contract for which he seeks a denied benefit.

28       Fundamental to the applicant’s case is necessity to view the respondent company’s actions with respect to Mr Naderi within the context of his dealings with a number of sales representatives generally and with Mr Hunter in particular.  Indeed Mr Hunter’s evidence was called first to set the scene in which Mr Naderi’s claim could be considered.  In the absence on any notice that Mr Hunter was to be called to give evidence the question arises as to whether that should have been admitted given the notion of similar facts evidence.  I consider that the prejudicial effect is out of proportion to the probative value of the evidence.

29       Notwithstanding the serious concern I have with respect to this aspect of the case, I believe that what is crucial to the determination of the claim is whether I believe Mr Naderi or Mr Giraudo on the outcome of the discussions on 10th January 1998.  The differing accounts of their discussions and the outcomes each understood to have eventuated gives rise to questions as to what were the terms of the contract, or was there only an offer communicated to Mr Naderi at that meeting which he subsequently accepted when he telephoned Mr Giraudo later?  Were the circumstances such that both parties were so mistaken about the terms they thought they had settled on that there was no real offer and acceptance and the agreement lacked efficacy.

30       I am not satisfied that the matter can be disposed of simply on the basis that the notice which prompted Mr Naderi’s attendance at the respondent’s office on 10th January offered “Retainer plus Commission” and what he finished up with was an advance plus commission.  Therefore he was duped and because of his circumstances he had to formally accept an arrangement which denied him the benefit of what he had originally contracted to get.

31       I believe that consistent with the cautious approach that Mr Naderi took in matters which were to affect his livelihood and future interests he explored all options in his discussions with Mr Giraudo on 10th January.  Far from being told that the position was retainer plus full commission I accept that the possibility of commission only and retainer and reduced commission were put to him.  Furthermore I accept the evidence of Mr Giraudo that it was Mr Naderi who promoted the idea of an advance.  That particular arrangement had not been applied before by the respondent.  While I accept Mr Giraudo to be a truthful witness I cannot conclude that Mr Naderi was lying.  I believe that he had a confused understanding of the arrangement.  Indeed I think that Mr Naderi only heard what he wanted to hear about the arrangements.  He acknowledged that his wife was surprised at the arrangement he thought that he was getting.  I do not believe that he was not given the option of having a retainer with reduced commission or an advance on full commission.  It was up to him to elect the arrangement he wanted.  That was where matters stood when the meeting finished on 10th January.  His misunderstanding became apparent when the sale of 21A Munster Street came up.  I accept that at that time he raised his objection to the payment of $250 per week being an advance.  However I believe that the focus of his attention quickly turned to the commission on the property he was purchasing.  He accepted the arrangement for the payment of the advance.  Indeed Mr Naderi’s evidence in chief indicated that he really left the matter to the respondent company.  The agreement he signed on 18th March represented his acceptance of the deal.  It was then that the terms of the contract were established.  This much is clear for the tenor of the cross examination.  He had no difficulty signing the agreement, he understood what it meant, he felt no duress and was secure in the knowledge that he was going to get $250 for six months from 16th February.  That was the contract he entered into.

32       As already indicated I have accepted Mr Giraudo to be a truthful witness.  His testimony was presented in a straight forward manner.  I believe him to have put in place an arrangement within the respondent company whereby prospective employees were given assistance to establish themselves in a competitive industry.  The arrangement whereby a non refundable advance or retainer was paid for a period of six months does not indicate a course of action designed to inveigle prospective sales representatives into employment to their detriment.  Indeed as Mr Hunter indicated, it would be difficult for a new sales representative to establish himself in Albany.  His expectation was that it would take him four months to secure a sale.  The arrangement promoted by the respondent company was designed to assist in recruiting employees for a long term employment relationship.  Nothing that was put in these proceedings impugns that policy.

33       As far as Mr Naderi is concerned I formed the view that in matters affecting his interests he was not ‘backward in coming forward’.  He was able to negotiate arrangements for his benefit which were outside the terms of his agreement.  The respondent’s willingness to accommodate Mr Naderi is consistent with the evidence that the principals wanted to retain his services.

34       It is interesting to note that the catalyst for the claim relating to commission on sales during the first six months of Mr Naderi’s employment was his annoyance at the outcome of the sale at Lot 6 Seymour Street.  In this light much of what was raised with respect to the signing of the employment agreement seems to have been an attempt at rationalising the circumstances under which Representatives Advance was entered into.  The disputed date of signing became the focus of attention.  The employment agreement had been presented to Mr Naderi within a day of two of starting.  His failure to sign the document or to raise a query about the absence of what he understood at the time to have been his entitlement to a retainer were unexplained.  No one knows when the document was signed needless to say it was not on the eighteenth of February 1998.

35       I completely reject the inference that the document was tampered with in any way.  In this respect I accept the evidence of Ms Marwick.  As to the more serious allegation that it was produced for signing in some way to protect the respondent company’s interests and lock Mr Naderi into commission rates when the period during which he was paid the weekly advance expired seems ill founded.  The Representatives Agreement states that “For any deals with a contract date outside the six months the Representative will be paid the full regular commission, regardless of the amount of advance still requiring reimbursement.”  (see Exhibit 7).  In addition to this Mr Naderi had been given all the details on the commission rates when he was given the employment agreement when he started.  He agreed that he had retained that document.  There was no doubt that both parties knew what the arrangement was when the period during which the advance was paid expired.

36       It appears that the purpose of the allegation that the document was signed in August and not at a time contemporaneous with the execution of the “Representatives Advance” was to show that the respondent employer was dishonest and that it took advantage of circumstances where Mr Naderi wanted some benefit to secure its own position.  I reject the evidence that Mr Pearson and Ms Marwick attended the applicant’s office and August and “stood over him” to ensure that he signed the document and initialled each page.  I believe Mr Pearson tried to honestly explain how the employment agreement went unsigned in February and the logic of having the two documents, the employment agreement and the “Representatives Advance” processed together.  In accepting the evidence for the respondent company I was impressed by Ms Marwick.  I accept that when Mr Naderi presented to enquire about his entitlement to commission on the sale of 677 Albany Highway, that she had recourse to the employment agreement to ascertain the expiry date of the payment of the advance.  The document was in the respondent company’s possession and although it was not signed on the date shown I believe that it had been executed prior to August 1998.

37       On the claim for payment of additional commission for the applicant’s involvement in the sale of Lot 6 Seymour Street it is clear that on the face of the record that it was a “conditional” offer when it was submitted to the respondent company.  The “Common Exhibit” submitted in the course of proceedings does not state that at the time the offer was submitted it was intended that, despite what was written on the contract for sale of land by offer and acceptance, it was unconditional.  The letter from Mr P.M. Drage states that the offer was “subject to Planning consent for a single dwelling”.  The evidence presented by Mr Giraudo was that a neighbour in an adjoining property had lodged an objection to the construction of a parapet wall.  So for some time after the offer was submitted and after Mr Naderi had left employment with the respondent company the requirements reflected in the condition set out in the offer were being pursued by the purchasers.

38       From the evidence I am uncertain as to whether or not Ms Marwick discussed the status of the offer with Mr Naderi.  However it is clear that there was a discussion between Mr Naderi and Mr Pearson.  That appears to have been much later and after Mr Naderi had been paid his commission.  I reject Mr Naderi’s repeated assertion that he had been told that he could take the sale with him when he left employment with the respondent company and joined another real estate agent.  That was clearly never the case.

39       Even if it is accepted that Mr Naderi did raise the prospect that the purchasers of Lot 6 Seymour Street were going to close the sale with or without the planning condition being met, the requirement was that had to be in writing.  In the absence of that it is difficult to sustain the claim.  However in recognising that the legal requirements had not been met the applicant submitted that equitable relief should be granted.  The merit of that position is undermined by evidence, which I accept that there was a continuing involvement after Mr Naderi left employment with the respondent in pursuing planning approval as was stipulated in the offer as initially lodged.

40       Both elements of the claim are dismissed.