WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2016 WAIRC 00728 CORAM :Commissioner D J Matthews HEARD : Monday, 18 July 2016, Tuesday, 19 July 2016 DELIVERED : Monday, 29 august 2016 FILE NO. : B 28 OF 2016 BETWEEN : Guy Millman Claimant AND United Petroleum PTy LtD Respondent Catchwords : Claim for denied contractual benefits - Claim disputed - Employment ended - Claim for payment of imported annual leave at rate of pay as at termination - Respondent contends only leave accrued during period of employment paid at rate of pay as at termination - Held imported annual leave payable at rate of pay as at termination - Respondent contentions in alternative - Section 26 Industrial Relations Act 1979 (WA) - Unfair to pay imported leave at rate of pay as at termination - Unjust enrichment of claimant - Breach of warranties by claimant - Not in public interest to make orders for payment of imported leave at rate of pay as at termination - Contentions under section 26(1) not industrial matters - No jurisdiction under Industrial Relations Act 1979 (WA) to decide contentions - Claim succeeds Legislation : Industrial Relations Act 1979 (WA) sections 7, 23 and 26 Result : Claim allowed, order for payment made Representation: Applicant : In person Respondent : Ms H R Millar (of Counsel) Solicitors: Respondent : K&L Gates Case(s) referred to in reasons: BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Hotcopper Australia Ltd v Saab [2002] WASCA 190 Case(s) also cited: Adelaide Timber Company Pty Ltd v The West Australian Timber Industry Industrial Union of Workers, South-Wet Land Division (1990) 71 WAIG 325 Australian Glass Manufacturing Co Pty Ltd v Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 72 WAIG 1499 Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (2008) 247 ALR 208 Re Harrison; Ex Parte Sealanes (1985) Pty Ltd [2005] WASC 158 Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers Western Australian (1986) 67 WAIG 315 Ruxley Electronics and Construction Company Co Ltd v Forsyth [1996] AC 344 === REASONS FOR DECISION === ¶1 Part of the claimant’s annual leave entitlement was paid to him upon the termination of his employment with the respondent at the rate of $40.00 per hour. The claimant says he had a contractual entitlement to be paid the entire amount of his annual leave entitlement at the rate of $60.73 per hour. The respondent denies such a contractual entitlement and contends that even if there was such an entitlement it would be unfair for the Western Australian Industrial Relations Commission to enforce it. [Background] ¶2 The evidence led at the hearing clarified various matters relating to the dispute. In my view, and as will be clear from these reasons, no serious credibility issues requiring resolution arose during the course of the evidence. ¶3 The evidence established the following by way of factual background. ¶4 By deed executed 7 November 2014 the respondent bought a business named “Fuels West Petroleum” from G and K Millman Pty Ltd. The claimant was one of only two directors and shareholders of G and K Millman Pty Ltd (the other being his wife Karen Jane Millman). The claimant was the controlling mind of G and K Millman Pty Ltd. ¶5 The respondent offered employment to certain employees of G and K Millman Pty Ltd. The claimant, Deborah Ann Barker and Owen Kinsey were offered and accepted employment with the respondent. (See clause 18.2 of Exhibit 3, the Asset Sale Agreement). ¶6 Clause 18.4(b) of Exhibit 3 had the effect that, for those employees of G and K Millman Pty Ltd who took up offers of employment, the respondent would become responsible for their “Leave Entitlements”, that is their leave entitlements accrued but not used during the course of their employment with G and K Millman Pty Ltd. “Leave Entitlement” was defined in clause 1.1 of Exhibit 3 to include annual leave entitlements. ¶7 Clause 18.3(a) of Exhibit 3 provided that G and K Millman Pty Ltd had to provide to the respondent, before Exhibit 3 was executed, full written details of the “Leave Entitlements” of relevant employees. ¶8 In terms of compliance with clause 18.3(a) the claimant pointed to Exhibits 1 and 2. ¶9 Exhibit 1 is a “Final Payment Certificate” dated 28 October 2014 which attached a document capturing a MYOB accounting programme summary of the leave entitlements of the claimant, Ms Barker and Mr Kinsey. ¶10 Exhibit 1 was produced in anticipation of settlement of the sale of the business occurring in late October 2014. In the event settlement was delayed until 7 November 2014. ¶11 Exhibit 2 is a “Final Payment Certificate” dated 6 November 2014 and which attached an updated MYOB accounting programme summary of the leave entitlements of the claimant, Ms Barker and Mr Kinsey. ¶12 Settlement occurred on 7 November 2014. ¶13 Pursuant to clause 20.1 of Exhibit 3 the claimant personally warranted that each of G and K Millman Pty Ltd’s warranties (with those warranties being set out at schedule 7 to Exhibit 3) were true and accurate. ¶14 One of the warranties given, at clause 20(a) of Schedule 7, was that Schedule 2 to Exhibit 3 contained a complete list of the employees of G and K Millman Pty Ltd and an accurate statement of, among other things, their accrued entitlements. ¶15 Schedule 2 to Exhibit 3 recorded the leave entitlements in hours. ¶16 It is obvious from looking at Schedule 2 to Exhibit 3 that the information included in it was drawn from the MYOB programme summary prepared for the original settlement date (which was the second page of Exhibit 1) and not that prepared for the eventual settlement date (which was the second page of Exhibit 2). ¶17 For instance, Schedule 2 to Exhibit 3 documents that the claimant’s accrued annual leave is 1415.909 hours which is a figure appearing for the claimant in Exhibit 1. ¶18 Exhibit 2 records a different (but lower) figure in that field and that figure does not appear in Schedule 2 to Exhibit 3. ¶19 In any event, the sale was not held up because of any alleged failure to comply with clause 18.3(a) or because of any discrepancy between the information in Schedule 2 of Exhibit 3 and the information in Exhibit 2 and the discrepancy was not argued by the respondent to be relevant to the outcome of these proceedings. ¶20 Both Exhibits 1 and 2 converted the claimant’s accrued annual leave entitlement expressed in hours to a money value. The money value is found in the last column of the MYOB programme summary and that figure appears in the Final Payment Certificates. ¶21 The reason for the conversion to a money value, and the appearance of that figure in the Final Payment Certificate, is that pursuant to clause 18.3(d)(iv) of Exhibit 3 the purchase price of the business was to be reduced by the “Leave Adjustment”, with that term being defined by clause 1.1 to include an amount equal to 100% of all amounts accrued but unpaid as at the date of sale in relation to annual leave for any employee of G and K Millman Pty Ltd who had accepted employment with the respondent. ¶22 Accordingly, the first page of Exhibit 2 reflects that the purchase price was reduced by $56,221.16 and included in that amount was an amount of $55,344.12 for the accrued but unpaid annual leave entitlement of the claimant, the amount of which in hours may be found on the second page of Exhibit 2. ¶23 I note that it became apparent in the proceedings that the annual leave entitlements of Ms Barker and Mr Kinsey were not applied in reduction of the purchase price, presumably due to oversight, (that is the money value of the entitlements as set out in pages 2 of Exhibits 1 and 2 were not incorporated into pages 1 of those exhibits) but the respondent expressly stated it was making nothing of this in the current proceedings. ¶24 At clause 3(a) of Schedule 7 to Exhibit 3, G and K Millman Pty Ltd warranted that all information given to the respondent by G and K Millman Pty Ltd and its employees was true, complete and accurate in all material respects and was not misleading or deceptive in any way. At clause 20(i) of Schedule 7 G and K Millman Pty Ltd warranted that if the services of an employee of G and K Millman Pty Ltd had been terminated then the amount provided for in its books for annual leave would have been sufficient to pay out the accrued annual leave entitlement. As I have said, pursuant to clause 20.1 of Exhibit 3 the claimant warranted that G and K Millman Pty Ltd’s warranties were true and accurate. ¶25 The relevant sum effects of Exhibits 2 and 3 on the facts of this case are: The possibility of the claimant being offered employment with the respondent was in the contemplation of them both; If an offer of employment was made to and accepted by the claimant, the respondent was to become responsible for the accrued annual leave entitlements of the claimant; That annual leave entitlement was expressed as a figure in hours in the second page of Exhibit 2 and, more importantly, pursuant to the Asset Sale Agreement, was expressed as a figure in hours (inaccurately but not relevantly so) in Schedule 2 to Exhibit 3; The figure in hours was converted to a dollar amount in the second page of Exhibit 2 and that dollar amount was included in a figure in the first page of Exhibit 2 representing an amount by which the purchase price was reduced pursuant to the agreement between the respondent and G and K Millman Pty Ltd; and The claimant warranted that the contents of Schedule 2 to Exhibit 3, which under the Asset Sale Agreement was to and did include the claimant’s annual leave entitlement expressed in hours, was correct and that the dollar amount nominated in Exhibit 2 would have been sufficient to pay out his annual leave entitlement if he had not become an employee of the respondent. ¶26 An offer of employment by the respondent to the claimant was made and accepted by the claimant. The contract of employment between the claimant and respondent was Exhibit 4 in these proceedings. ¶27 The contract of employment comprises seven pages and is a standard form document with specific details providing that the claimant was to receive an annual base salary of $120,000.00 plus statutory superannuation contributions, that it was to commence on 1 November 2014 and that the first six months of employment was to be a probationary period. ¶28 The contract of employment entered into followed the rejection by the claimant, on the basis of the remuneration proposed, of an initial offer of employment from the respondent to the claimant. ¶29 Clause 5.2 of Exhibit 4 is relied upon by the claimant and I reproduce it in full. 5.2 Annual Leave You will be entitled to 4 weeks’ paid annual leave per year of service with the company. Annual leave accrues on a pro rata basis and is cumulative. Annual leave is to be taken at times agreed with the company. The company will not unreasonably refuse to authorize the taking of annual leave by you. If you accrue more than 40 days annual leave the company may direct you to take up to 25% of the amount of accrued unused annual leave upon giving 2 weeks’ notice. Upon the termination of your employment you will be entitled to payment in lieu of any untaken annual leave. ¶30 During the course of his employment with the respondent the claimant received fortnightly payslips. ¶31 Exhibit 5 in these proceedings was a payslip for the period 17 November 2014 to 30 November 2014. It has a row recording information relating to “Annual Leave” with the headings “Entitlement”, “Prorata”, “Taken” and “Total”. ¶32 In Exhibit 5 the “Entitlement” field was blank, in that no figure was recorded. ¶33 The claimant raised this verbally with the respondent’s payroll section. ¶34 Exhibit 6 was a payslip covering the period 23 March 2015 to 5 April 2015. It records in the “Entitlement” field a figure “182.05”. Annual leave was recorded in the payslips by the respondent as days rather than hours. ¶35 The respondent calculated entitlements on the basis of a 38 hour week or 7.6 hours per day. ¶36 The figure of 182.05 days may be converted to 1383.58 hours. If regard is had to the second page of Exhibit 2 the figure of 1383.603 hours is nominated as the total of the claimant’s accrued annual leave entitlement with G and K Millman Pty Ltd as at 6 November 2014. ¶37 The figure of 182.05 days of annual leave in Exhibit 6 was evidently produced by converting the figure on the second page of Exhibit 2 from hours into days (the difference of 0.023 is immaterial in my view). ¶38 The figure in Schedule 2 to Exhibit 3 was not used. As I have noted the figure in Exhibit 2 was lower than that appearing in Schedule 2 to Exhibit 3. For this reason the inaccuracy in Schedule 2 to Exhibit 3 was not relevant to the outcome of these proceedings. ¶39 Exhibit 7 in these proceedings was the claimant’s final payslip from the respondent. ¶40 It records in relation to “Annual Leave” that “as at 24 April 2015” the claimant had an “Entitlement” to 182.05 days, that he had “Prorata” annual leave of 9.09 days (this is the entitlement the claimant had built up since becoming an employee of the respondent) that he had “Taken” annual leave of 24 days and that his “Total” was 167.15 days (i.e. 182.05 days plus 9.09 days minus 24 days [which is actually 167.14 days but the difference is immaterial]). ¶41 The claimant was however employed until 7 May 2015. As the figures for annual leave in Exhibit 7 were expressed as being current as at 24 April 2015, the final figures would have to take account of the period of employment from 24 April 2015 to 7 May 2015. ¶42 For instance Exhibit 7 records that the claimant took 53.20 hours of annual leave after 24 April 2015. ¶43 It seems the accurate final figures may be found in Exhibit 8, which I will come to later. ¶44 As noted above, the claimant’s annual salary with the respondent was $120,000.00. On the basis of a 38 hour week he was paid $60.73 an hour. When he had taken annual leave while employed by the respondent he had received an amount by way of pay equivalent to $60.73 per hour (see, for example, Exhibit 6). ¶45 The claimant expected that the last paragraph of clause 5.2 of Exhibit 4 would have the effect that he would be paid his total number of days of annual leave by the number of days being converted to hours and each hour being paid at $60.73. ¶46 This, however, is not how the respondent calculated the claimant’s outstanding entitlement. ¶47 Exhibit 8 in these proceedings is an email dated 3 July 2015 from Ajith Abeynaike, the Group Financial Controller of the respondent, to two other employees of the respondent. It shows the way in which the respondent calculated the claimant's entitlement. ¶48 The email expresses the claimant’s annual leave entitlement in hours as at 7 May 2015. That is it purports to reflect the claimant’s annual leave entitlement as at 7 May 2015, rather than as at 24 April 2015 as was captured by Exhibit 7. ¶49 The claimant tendered Exhibit 8 and did not dispute the accuracy of the annual leave entitlement recorded in it insofar as it was expressed in hours. A table at [27] of the respondent’s “Outline of Oral Submissions” reproduces and relies upon relevant parts of Exhibit 8. I will accordingly rely on Exhibit 8 as being accurate in relation to the claimant’s entitlement to annual leave, expressed in hours, at the time of the termination of his employment. ¶50 Exhibit 8 shows that the respondent took as a start point that when the claimant commenced employment with the respondent he had an accrued annual leave entitlement of 1383.60 hours (being the figure in the second page of Exhibit 2). The email notes that when this was expressed as a dollar amount the figure given was $55,344.00 (also appearing in the second page of Exhibit 2 although the exact figure given was $55,344.12) and thus, the respondent said, this equates to each hour of annual leave being valued at $40.00. As Exhibit 8 notes, the purchase price was reduced by an amount which included the amount of $55,344.00. ¶51 The further reasoning evidenced by Exhibit 8 is that all leave taken by the claimant while employed by the respondent should be applied in reduction of the accrued entitlement brought across. That is the respondent proceeded, appropriately, on the basis that the oldest leave entitlement was used first. According to the respondent’s calculations in Exhibit 8 the claimant took 237.40 hours of annual leave while employed by the respondent. This reduced the imported entitlement balance from 1383.60 hours to 1146.20 hours according to Exhibit 8. Each of those hours, the reasoning reflected by Exhibit 8 went, should be paid out at $40.00 per hour because each hour of imported leave, on the figures given by G and K Millman Pty Ltd in Exhibit 2, was “worth” $40.00 both to the claimant when he accrued it and in relation to the reduction in the purchase price. ¶52 At $40.00 per hour the imported entitlement amounted to $45,848.00. ¶53 As the leave taken was applied as a reduction to the accrued leave balance brought across, no leave accrued during employment was used by the claimant and accordingly the calculations in Exhibit 8 reflect that leave is to be paid out at $60.73 per hour. As there was 79.77 hours of such leave according to Exhibit 8 this amounted to $4844.33. ¶54 A total of $50,692.33 was paid to the claimant pursuant to the approach of the respondent. [The Contentions of the Parties] ¶55 The claimant says that clause 5.2 of the contract of employment (Exhibit 4) provides that his untaken leave as at the date of the termination of his employment is to be paid out applying the remuneration to which he was entitled under Exhibit 4. Exhibit 8 reflects he had an entitlement to 1225.97 hours of annual leave as at the date of the termination of his employment. The claimant had an annual salary of $120,000.00 under Exhibit 4. Accordingly, the payment to which he is entitled, on the claimant’s case, is produced by combining those two figures. On the claimant’s case it may be done in the following way: by converting his annual salary to an hourly amount, based on the respondent calculating entitlements on the basis of a 38 hour week, producing a figure of $60.73 per hour; and multiplying $60.73 by 1,225.97 to produce a total payout figure of $74,453.16. ¶56 From this is subtracted the amount actually paid to the claimant, $50,692.33, leaving an outstanding entitlement of $23,760.82. (with the claimant’s claim being for $23,760.22 there is a difference of 60 cents which I consider to be immaterial) ¶57 The respondent contends that clause 5.2 must be read as a whole and if that is done it is clear the last paragraph provides that only leave accrued during the currency of the contract of employment, and not leave accrued in previous employment and imported, is paid out upon termination. The respondent says the entitlement to payment for the imported leave not taken arises as a matter of statute, that is under the Fair Work Act 2009 (Cth). The relevant result, the respondent contends, is that the present claim is not one for enforcement of a contractual entitlement and is not within the jurisdiction of the Western Australian Industrial Relations Commission. ¶58 The respondent contended that, if I find against that argument, the accrued entitlement should still not be paid out at $60.73 an hour because there was, in contractual terms, no meeting of the minds of the parties to the employment contract on the figure at which the imported leave would be paid. The respondent says that the figure of $60.73 “wasn’t accepted and wasn’t understood by the respondent and [the respondent] says couldn’t be understood by the respondent based on the documentation that was provided to it.” (Transcript page 90). ¶59 The respondent’s alternative argument was that, if I was to find that there was a contractual entitlement to payment of all hours of accrued annual leave at the rate of $60.73 an hour, I ought not enforce that contractual entitlement by order because to do so would not be fair to the respondent and would not be in the public interest. ¶60 In relation to why it would be unfair to enforce the contractual entitlement claimed by the claimant, if I find it to exist, the respondent contends that the purchase price for the business of G and K Millman Pty Ltd was reduced by an amount, nominated by G and K Millman Pty Ltd and warranted by the claimant to be correct, which assumed that each hour of the claimant’s annual leave was valued at $40.00. ¶61 If the respondent has to pay out those hours to the claimant on the basis that each hour is worth $60.73 the respondent will have, as things have turned out, paid too much for the business. At $60.73 per hour the reduction in the purchase price should have been $91,027.04 (see [17] of respondent’s “Outline of Closing Submissions”). ¶62 As the difference between the two amounts can be traced back to the claimant, the respondent argues, it would be unfair to make an order, in the claimant’s favour, which has the result that the respondent did not get the proper reduction in the purchase price or, looked at another way, has the result that the respondent pays too much (effectively to the claimant) for the business of G and K Millman Pty Ltd. ¶63 The respondent says that on the facts of this case the unfairness can be described in terms of the claimant being unjustly enriched (that is the claimant gets the benefit of the inflated purchase price and an inflated annual leave payout) or in terms of the claimant not being held to warranties and indemnities he gave in Exhibit 3. The respondent says that if orders are not made in the claimant’s favour he will suffer no loss because he has already had the benefit of the inflated purchase price. ¶64 The respondent notes that section 26(1) Industrial Relations Act 1979 requires me to act according to equity, good conscience and the substantial merits of the case and also requires me to have regard to the interests of the respondent. The respondent contends that there will be unfairness to the respondent if the contractual entitlement is enforced by an order in favour of the claimant and that such an order would not be equitable or, on the whole, meritorious. ¶65 Finally, the respondent says that the unjust enrichment and breach of warranty and indemnity claims may be litigated elsewhere if not dealt with in these proceedings and, invoking section 26(1) Industrial Relations Act 1979, says that it would not be in the interests of the community for there to be multiplicity of litigation. [Consideration] ¶66 I am far from convinced that the last paragraph of clause 5.2 of the contract of employment (Exhibit 4) should be read down in the way the respondent contends. That is, I am not convinced that the reference to “any untaken annual leave” is a reference only to any annual leave which accrued during the period of employment under the contract of employment, but which has not been taken, and excludes any imported annual leave. ¶67 Clause 5 is entitled “Leave”. Clause 5.1 is headed “Entitlement” and says: 5.1 Entitlement You will be entitled to paid and unpaid leave in accordance with the Australian Fair Pay and Conditions Standard in the Workplace Relations Act 1996 (Cth). A summary of those entitlements is set out below. ¶68 Although the last sentence says that a “summary” of the entitlements in the Workplace Relations Act 1996 (Cth) is set out below there was no argument put, understandably, that the clauses set out below did not have contractual force and effect on their own terms. ¶69 Clause 5.2 is headed “Annual Leave”. ¶70 It is clear that the first two sentences of the clause provide for how annual leave accrues while employed under the contract of employment. ¶71 The next two sentences are not expressed to apply only in relation to leave accrued during the period of employment under the contract of employment. ¶72 If the claimant wanted to take annual leave imported from his previous employment, as he did, that would have to be at times agreed with the respondent. ¶73 The application of the second paragraph to imported leave might be debatable but it is not clear that the provision would not apply to allow the respondent to manage the leave balances of all of its employees and all of their leave balances whether accrued or imported. The most sensible reading of the second paragraph is that it would apply to all unused annual leave regardless of its source. ¶74 Against the background of that analysis of the first two paragraphs of clause 5.2 there is nothing which compels the reading down of the third paragraph to provide that, as a matter of contract, it is only annual leave accrued under the contract of employment which is paid out upon termination. ¶75 The highest at which the respondent could put it is that some ambiguity about the word “any” in the last paragraph arises. I do not accept that there is ambiguity but if there were such ambiguity, that ambiguity could be resolved by evidence of negotiations or conduct that establishes the relevant facts known to both parties. (See Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352). ¶76 In this case the respondent made the offer of employment in terms of Exhibit 4 knowing that the claimant had an accrued annual leave entitlement that he was bringing across if he accepted the offer of employment. The amount of that leave, expressed in hours, was known to the respondent. The amount of leave had been expressed by way of a money value in Exhibits 1 and 2 for contractual reasons related to the sale of the business but had also, in those documents and in Exhibit 3 itself, been expressed in hours (inaccurately but not relevantly so). The expressions of the annual leave entitlement in hours are far more relevant insofar as resolving any ambiguity in clause 5.2, if indeed there is ambiguity. ¶77 The word “any” is one of the widest import. There is no reason to read down the word “any” in the last paragraph of clause 5.2 to not include the imported leave or to be in some other way confined against the background set out above. ¶78 I find that as a matter of contract the claimant was entitled, upon termination of his employment, to payment in lieu of any untaken annual leave and that this included any leave accrued during his employment with G and K Millman Pty Ltd which was imported and which was not taken during his employment with the respondent. ¶79 The next question is whether the imported leave ought to have been paid at the rate of $60.73 an hour or $40.00 an hour under the contract. In this regard the respondent was not able to point to anything in the contract itself, whether expressed or implied, which would disturb a conclusion that a person’s leave is to be paid at their rate of pay. ¶80 The respondent contended that there had been no meeting of the minds in relation to whether the imported leave ought to be paid at $60.73 or $40.00 per hour. I find that the meeting of the minds is evidenced by: clause 5.2 of Exhibit 4 providing that any untaken leave will be paid out; and Exhibit 4 providing that the claimant’s salary was $120,000.00 per annum. ¶81 Nothing more is required. ¶82 What the respondent needed to do was establish that there was a term of the contract of employment, expressed or implied, that the claimant would not be paid his imported leave at his rate of pay under the contract of employment. The respondent was unable to do this. The respondent’s arguments in this regard ultimately relied upon matters related to the sale of G and K Millman Pty Ltd’s business to the respondent and not the employment contract between the claimant and respondent. Those matters are related to but legally separate from the contract of employment upon which the claimant brings his claim. ¶83 Given this finding I do not need to turn my mind to whether a term that an annual leave entitlement is to be paid at a rate less than an employee’s current rate of pay would be lawful. ¶84 The respondent made something of the claimant being a salaried employee rather than a wages employee in its Outline of Closing Submissions. This distinction is not to the point in this case. An annual salary of $120,000.00 based on a 38 hour week may be expressed as an hourly rate of pay uncontroversially. The respondent itself took this approach as shown in the claimant’s payslips, Exhibits 5, 6 and 7. ¶85 The respondent went on, at [5] of those submissions, to deal with a matter I raised during the course of the hearing, namely whether the fact that the claimant, when he took imported annual leave while employed by the respondent, was paid at the rate of $60.73 per hour had any contractual significance. In the end I find I do not need to deal with the argument. The key matters in relation to the matter of contractual entitlement are the interpretation of clause 5.2 of Exhibit 4 which I have set out above and that Exhibit 4 provided for an annual salary of $120,000.00. ¶86 For the above reasons I reject the respondent’s contention that the present claim is not within the jurisdiction of the Western Australian Industrial Relations Commission because it seeks enforcement of a statutory rather than contractual entitlement. ¶87 In terms of the claimant’s contractual entitlement he had untaken annual leave of 1225.97 hours when terminated. The claimant was paid a salary that may be expressed uncontroversially as $60.73 per hour. ¶88 As a matter of contractual entitlement the claimant was entitled to have the entire amount of his annual leave entitlement paid out at the rate of $60.73. As a matter of contract he is entitled to a payment of $23,760.82 pursuant to the last paragraph of clause 5.2 as calculated at [56] herein. ¶89 The respondent argued that I should, nonetheless, not make an order in the claimant’s favour for the reasons I have set out at [59] to [65] herein under the heading “The Contentions of the Parties”. Those contentions are, essentially, that various matters would make such an order unfair. ¶90 I reject the respondent’s contentions. ¶91 The respondent’s complaint is that, as events have transpired, an order in favour of the claimant will have the result that it will have paid G and K Millman Pty Ltd too much for Fuels West Petroleum. ¶92 The respondent’s complaint is that this overpayment will be a direct result of the information provided to it which the claimant, a director of G and K Millman Pty Ltd, warranted was correct when it was not correct and that it is the claimant who will benefit from the breach of warranty. ¶93 The nexus between these complaints and this matter is said to be that the person who will, in reality, be the beneficiary of the inflated purchase price paid and the person who warranted the correctness of the information which turned out, on the respondent’s case, to not be correct became an employee of the respondent, essentially as part of the sale of the business, and brings the present claim relying on having been an employee of the respondent. ¶94 The problem I see with the respondent’s contentions is that they do not relate to an “industrial matter” as that term is defined by section 7 Industrial Relations Act 1979. ¶95 Pursuant to section 23(1) Industrial Relations Act 1979 the Western Australian Industrial Relations Commission only has jurisdiction to deal with industrial matters. ¶96 It is true that the definition of “industrial matter” in section 7 Industrial Relations Act 1979 is a broad one but even so there are limits to it (see Hotcopper Australia Ltd v Saab [2002] WASCA 190 and BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191). ¶97 In my view, the contentions of the respondent lack any ingredient of industrial relations and cannot be characterised as industrial matters. ¶98 Although the sale of the business and the employment of the claimant by the respondent are factually linked that is not enough in itself to make all and any matters related to the sale of the business industrial matters. The two, while factually linked, are plainly legally separate matters. ¶99 According to the Asset Sale Agreement, Exhibit 3, the respondent was under no obligation as part of the purchase of the business to offer employment to the claimant, even though that event was within the contemplation of the parties. The employment of the claimant by the respondent was a separate event and was the subject of a separate contract. Even if the respondent had been contractually obliged to offer employment to the claimant the employment contract would remain a legally separate and discrete agreement. ¶100 That the claimant was involved in the sale of the business and dealt with the respondent as a prospective employee and became an employee of the respondent, essentially as part of the deal, does not mean that all his dealings with the respondent were employment related. The matters of whether the respondent, as events transpired, paid more than it should have done to G and K Millman Pty Ltd for that company’s business and whether, if it did so, this was because the claimant as a director of G and K Millman Pty Ltd breached warranty provisions in the sale agreement were not employment related matters and do not have any ingredient of industrial relations. These matters, properly characterised, are commercial disputes. ¶101 This is so in my view even if the claims relate to warranties in relation to the money value of the claimant’s annual leave entitlements with G and K Millman Pty Ltd. ¶102 That the alleged breach of warranty relates to such a matter might make the dispute seem, at first glance, to be about an industrial matter. However, upon reflection, the matter clearly falls on the wrong side of the line the Industrial Appeal Court has said exists. ¶103 Properly characterised, the alleged acts or omissions relating to this matter about which the respondent complains were the alleged acts or omissions of the director of a company and not those of a prospective employee or employee. ¶104 The claimant may very well have been a prospective employee but that is not enough in the circumstances to give the matter an ingredient of industrial relations. The matter might be looked at this way: a breach of warranty complaint could still be made against the claimant in relation to the failure to apply the annual leave entitlement of Ms Barker or Mr Kinsey in reduction of the purchase price or, if it was the case, Ms Barker’s or Mr Kinsey’s imported annual leave entitlement being paid out at a higher rate by the respondent than the respondent had expected. Those claims could be made whether or not the claimant was a prospective employee or employee of the respondent. This, in my view, points up that the respondent’s complaints against the claimant relate to his alleged acts or omissions as the director of a company and not as the respondent’s employee or prospective employee. ¶105 There was no evidence, for instance, that the amount of annual leave brought across by the claimant, expressed in money value, was crucial to the decision of the respondent to offer employment to the claimant in the sense that the respondent would not have offered the claimant employment if the amount was a higher one. There was no evidence that the respondent was induced to offer employment because of any of the information it says was not correct and which the claimant had warranted to be correct. For the sake of clarity I add that even if there had been such evidence it would not have led to me differently characterising the relevant events. ¶106 The only action the claimant took as a prospective employee was to negotiate and execute Exhibit 4 which contained the unremarkable clause that his annual leave would be paid out upon his employment ending. ¶107 The only action the claimant took as an employee of the respondent was to query why his payslip did not have an entry in the “Entitlement” field of his annual leave. There was nothing unfair or improper about him doing this. There was nothing unfair or improper about him accepting as accurate the number nominated by the respondent. It was, after all, the number that had been given to the respondent, converted from hours to days. It was not part of the respondent’s case that the figure was wrong. The dispute was about the rate at which it would be paid and the claimant, even if I agree with everything the respondent argues, did nothing as an employee of the respondent to affect the rate. ¶108 Although I have gone to some trouble to explain that, as I see it, the claimant did nothing relevant as a prospective employee or employee even if I am wrong about this and the acts or omissions complained about may be properly characterised as those of a prospective employee or an employee I am still of the view that the alleged acts or omissions lack the ingredient of industrial relations in the same way as the Industrial Appeal Court found in Hotcopper Australia Ltd v Saab [2002] WASCA 190. ¶109 The respondent’s contentions are, properly characterised, commercial matters and the Western Australian Industrial Relations Commission is not empowered nor, given Part II of the Industrial Relations Act 1979, intended to be equipped to hear and determine commercial disputes. ¶110 A finding that the respondent’s contentions do not relate to industrial matters, which I make, means that I do not, and should not, attempt a qualitative judgement upon the actions of the claimant in relation to the sale of the business. ¶111 I do not comment on whether, as the respondent contends at [7] to [19] of its Outline of Closing Submissions, the evidence in relation to the claimant’s income while employed at G and K Millman Pty Ltd is unreliable. It is irrelevant to the matter of contractual entitlement, the matters relevant there being the claimant’s entitlement to annual leave and his remuneration as at the time of termination, and I have no jurisdiction to comment on the evidence in any other context. ¶112 While section 26 Industrial Relations Act 1979 is relevant to all exercises of jurisdiction by the Western Australian Industrial Relations Commission, including the exercise of its jurisdiction in relation to claims that contractual benefits have been denied, section 26 cannot give the Western Australian Industrial Relations Commission jurisdiction it does not have. ¶113 In other words, having found that the respondent’s contentions are not industrial matters, I cannot, through section 26, consider the respondent’s contentions on the basis that it is necessary to do so to act with equity and good conscience and to decide the substantial merits of the case or because it would be in the interests of a party or in the public interest to do so. ¶114 I say nothing about the claimant’s conduct in his capacity as a director of G and K Millman Pty Ltd. Any claims the respondent has about that conduct will, as a matter of jurisdiction, have to be litigated elsewhere. ¶115 The claimant’s claim succeeds for the reasons given above. The claim is for an amount of $23,760.22 (less tax) and I will make an order that the respondent pay that amount to the claimant forthwith.