MINA LABIB SHEHATA v. COGNIS CHEMICALS (HK) LTD AND ANOTHER

HCA113/2004 & 1192/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 113 OF 2004

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AND

ACTION NO. 1192 OF 2006

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(CONSOLIDATED)

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JUDGMENT

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Introduction

1. This trial in which former employee is pitted against former employer, principally involves the resolution of strenuously contested issues of fact concerning the existence of alleged oral representations made by a representative of the 2^nd defendant over 10 years ago, to the plaintiff an employee of the 1^st defendant.  The 1^st defendant was a subsidiary company of the 2^nd defendant’s international group of companies.  The plaintiff had been working in Hong Kong since 1988.

2. In 1995 PVC Additives Ltd (“PVC”), a Hong Kong company, had as its beneficial owners Mr Paul Campion (who owned 80%) and the plaintiff (who owned 20%).  Mr Campion and the plaintiff entered into discussions with the 2^nd defendant Henkel K GaA (“Henkel”) which is a large German pharmaceutical company, about Henkel acquiring an interest in PVC.  The Hong Kong company subsequently changed its name to Cognis Chemical (HK) Ltd (“Cognis”) the 1^st defendant.

3. The initial proposal was that some form of joint-venture would come into being but ultimately a complete acquisition of PVC occurred.  On 28 May 1996 the parties agreed a purchase price of HK$57,500,000.  All terms were documented in a sale and purchase agreement signed on 12 July 1996.  No issue arises from the sale and purchase of the share capital of Cognis.

4. Mr Campion then dropped out of the on-going picture.  However, the plaintiff continued to work for Cognis, as both Henkel and the plaintiff wished.  The plaintiff is a trained industrial chemist and was involved in the technical aspects of the business of Cognis.  The plaintiff worked for Cognis until August 2001, pursuant to written terms of employment.  Upon ceasing employment Cognis paid the plaintiff HK$1,360,756 in purported satisfaction of all outstanding sums owed to him.  The plaintiff by these proceedings claims that he is entitled to considerably more.  A large number of claims originally made by the plaintiff have dropped away in the course of the litigation leaving four separate remaining contests by the time of trial.

The plaintiff’s Remaining four Claims

5. The plaintiff’s current case can be summarised as follows :

(a)	At the conclusion of the negotiations of the price that the plaintiff and Mr Campion would accept for Cognis (PVC as it then was), Dr Arthur Meffert orally agreed on behalf of Henkel that the plaintiff would be paid HK$3,500,000 by Henkel or Cognis.  He has never been paid this sum (“the HK$3.5m claim”).
(b)	During the course of the plaintiff’s employment Dr Meffert orally agreed that Cognis would pay the plaintiff in lieu of any Saturdays, Sundays and public holidays he might work, in recognition that his overseas work commitments for Cognis/Henkel frequently prevented him from taking his normal days off (“the weekend claim”).  The plaintiff originally claimed an astonishing 525 days, worth over HK$5,000,000, and literally representing every day of every weekend throughout the course of his entire employment.  The plaintiff eventually reduced that claim to only the weekends and holidays when he was overseas (out of Hong Kong) on business for Cognis.  The reformulated claim was for 222 accumulated days leave and he claimed to be entitled to be paid HK$2,025,622.12.  This was further reduced at trial to a claim for 201.5 days (as 17 of them were pre 12 July 1996 and 3.5 days were taken as a holiday 26–29 May 1999).  This claim is now valued at HK$1,838,571.30.
	In addition on termination of his employment there were a number of other entitlements which the plaintiff claims he had not been paid.
(c)	A claim for 77 days unused annual leave valued at HK$97,936.  The plaintiff claims that the 1st defendant wrongly failed to pay him the correct amount due for unused annual leave as the formula they adopted was erroneous (“the annual leave” claim).
(d)	A claim that the defendants omitted to pay a Target Dialogue (a bonus), to be assessed.  The plaintiff sought approximately HK$200,000 to cover both the year of 2000 and the eight months until August 2001 when the plaintiff’s contract was terminated (“the target dialogue” claim).

The total sought in these proceedings for the four claims is, therefore, about HK$5,642,000.

6. The defendants deny the promises referred to in (a) or (b) were made and say alternatively that even if they were made Dr Meffert had no authority to bind either of them.  The defendants additionally plead that if any such promises were made they do not give rise to an enforceable contractual right because no consideration was given for them.  In relation to (c) the defendants deny miscalculation of the unused annual leave.  In relation to (d) the Target Dialogue, the defendants say that even if it was due there is no evidence as to its amount before the court, so it must be assessed on a loss of a chance basis at best.  By its reply, the plaintiff pleads to the issues of authority and asserts that the promise to pay HK$3,500,000 has been acknowledged on a number of occasions.

The Years 1995-1997

7. In July 1995 PVC made a presentation to Henkel, with a view to the possible creation of a new joint-venture with Henkel.  Henkel after mulling over the matter then in February 1996 indicated its view as to the value of PVC and of its potential sales growth if a joint-venture eventuated.  However, in due course a 100 per cent acquisition of PVC was explored and finally agreed upon.

8. The initial offer by Henkel on 20 March 1996, (hedged with various conditions) was to purchase PVC for HK$61,000,000 subject to necessary approvals and the negotiation of the share purchase agreement.  The final execution of the share purchase agreement took place on 12 July 1996 and it was for a lesser sum than that which had originally been conditionally offered.  Having checked the PVC accounts more closely as part of a due diligence exercise Henkel discovered certain liabilities of PVC of which it had not been previously aware.  Henkel required HK$3,600,000 to be shaved off the original proposal.

9. The plaintiff and Mr Campion were both surprised and disappointed by this required reduction.  In due course however, a modified reduction of HK$3,500,000 was agreed by PVC and Henkel sometime between 23–28 May 1996.  PVC had had earlier offers to merge with it or acquire it, but ultimately it gave Henkel exclusivity for the negotiation period.  Henkel had an excellent reputation and was one of the top 500 companies in the world and was thought likely to be best for PVC in the long term.

10. Whether because of their comparative financial positions (of weakness or strength respectively) or otherwise, it became a fact that between the plaintiff and Mr Campion, the plaintiff alone would bear the entire reduction in the purchase price in the amount of HK$3,500,000.  Mr Campion would get 80% of HK$57,500,000 and the plaintiff would get 20% of it (less the HK$3,500,000). While the plaintiff ran the day-to-day operations of PVC, it was Mr Campion who was bankrolling the business.  The plaintiff was though liable on a guarantee to HSBC for a loan by HSBC to PVC in the order of about HK$4,500,000.  The plaintiff also separately owed Mr Campion HK$2,000,000 by mid-1996.

Plaintiff’s Evidence

11. The plaintiff as well as Mr Campion and the plaintiff’s daughter gave evidence.  As it promised to be from the pleadings, the real contest was always going to be a head-to-head one between the plaintiff and Dr Meffert on behalf of the defendants.  This was a classic case turning on credibility of the witnesses – where very few documents indeed were particularly relevant to the issue of whether oral promises having contractual force were made or not.   None of the other witnesses were present at the critical time of the conversations between the plaintiff and Dr Meffert.  Although the other witnesses could provide some general context and explain some of the documents and practices, these witnesses were of considerably lesser importance.  It was really a contest between the plaintiff and Dr Meffert as to where the truth lay.

Evidence of Mr Campion and of plaintiff’s Daughter 

12. Both witnesses gave evidence in a straightforward way.  Nothing said by either of them is of any determinative significance.  In particular the so called admissions relied upon by the plaintiff, said to be overhead by his daughter, were valueless.  They were not admissions at all.  They were incidential references, plucked out of context, heard with difficulty from a considerable distance.  Nothing more needs to be said about the plaintiff’s witnesses.

Defendants’ Evidence

13. Although the defendants filed eight witness statements, only four gave oral evidence.  Negligible to zero weight is given to the statements of the four non-attendees.  In particular the statement of Dr Piorr exhibited to the statement of another witness is quite valueless for the reasons advanced by Mr Harris SC – indeed it is not even proved that Dr Piorr actually signed the unsworn letter relied upon.  Of the four witnesses called by the defendants only Dr Meffert, Mr Joe Law and to a much lesser extend Mr Jerrentrup, gave probative evidence.  Nothing needs to be said about the latter, except that he tried too hard (and quite unsuccessfully) to show that Dr Meffert had no authority in employment matters.  No matter how Henkel was meant to operate, I find it did operate in relation to Cognis on the basis that Dr Meffert made employment decisions.  Dr Meffert held himself out as being able to agree the plaintiff’s salary.  He gave evidence that he had the seniority and influence to affect decisions in relation to terms of employment for employees within his unit, who worked for different companies worldwide.  Henkel operated, as a matter of practice, on an integrated Group basis and Dr Meffert had apparent authority to agree matters such as terms of employment.

14. Dr Meffert had an important role within Henkel.  The strategic business unit to which he was responsible had an annual turnover of approximately US$250,000,000.  His evidence about his limited responsibilities and the attenuated nature and extent of his decision-making authority was too coy – particularly during cross-examination.  He was determined to minimise his own role and to downsize his responsibilities, from what they really were.  The picture that he was trying to paint, was that he was but a senior chemist, quite unfamiliar with or alternatively out of his depth in the business decision-making world. 

15. Dr Meffert was a suave businessman, who despite his protestations, was at home with profit and loss accounts, cost factors and discretionary decision-making.  He was the head of the unit which had taken the initiative to acquire PVC and although a small enterprise on the global scale for Henkel, it was nevertheless important enough for him to take a hands-on approach in relation to its acquisition.  His unit had to prepare a 10 year plan in relation to the acquisition.  The negotiation of the plaintiff’s employment was not carried out by Cognis but by Henkel.  The plaintiff would become a senior employee in a Henkel subsidiary.   The formal lines between Henkel and Cognis were being consistently blurred by the parent company in the Group.  Dr Meffert was fairly obviously acting in a way which one might reasonably infer was known to Henkel and making decisions which clearly were intended to be accepted as such by people that Henkel was dealing with.

The $3.5m claim

The plaintiff’s diary

16. The plaintiff’s case is that he kept a personal diary during the negotiations between PVC and Henkel, as the possibility of a merger or acquisition was a very important commercial transaction for him.  The plaintiff in support of his claim for HK$3,500,000 (the sum eventually deducted out of his share of the value of PVC) relies upon a diary note he made on 28 May 1996.  The plaintiff says this substantiates his claim that Dr Meffert, the negotiator for Henkel, was sufficiently sympathetic about the plaintiff’s personal absorption of the negotiated reduction in the share price, that Dr Meffert agreed to compensate the plaintiff by returning to him the HK$3,500,000.  The plaintiff stated that the exact words said to have been spoken by Dr Meffert were : “Mina, I will return that money back to you”.  Neither the word “promise” or “undertaking” were ever used by Dr Meffert.

17. That diary note reads (after some observations on the state of the plaintiff’s digestion) :

“	Meffert rang to say very nicely that he accepts my proposal and that he will take 3.5 HKM out.  I said that I will honour my proposal trying to get him down but he said that he will compensate me in the future.  He was very nice about it.”

It is wholly self-serving.  There is no other relevant documentary evidence.  An evaluation of the plaintiff’s evidence will be found later.

The Weekend Claim

18. The plaintiff was for Henkel an important component in the recently acquired business of Cognis.  He had technical skills, experience and contacts in the Middle East which was a significant market.  Some 75% of the total sales were in the Middle East, at the time of the weekend promise.  The plaintiff was often there on business for PVC/Cognis. 

19. In early November 1996 the plaintiff’s case is that he had a conversation with Dr Meffert in which the plaintiff explained that he did a considerable amount of business travelling, particularly to the Middle East, on behalf of Cognis.  Because the ‘weekend’ in the Middle East is Thursday and Friday (to accommodate religious imperatives) the plaintiff found that he would very often be required to work on Saturday and Sunday while overseas and to work on a catch-up basis on Saturday and Sunday, later upon his return to Hong Kong.  (He would not be working on Thursday and Friday, while in the Middle East.)  The case is that Dr Meffert took a robust approach to this issue and that he agreed that if the plaintiff worked Saturdays, Sundays or public holidays he could carry his rest days forward. 

20. The plaintiff originally claimed for 525 days valued at some HK$5.5M for time off in lieu – that is every weekend in the five year period of his employment.  The claim was then reduced to only those weekends spent working overseas in the Middle East on behalf of Cognis, after the benefit of legal advice from his solicitors.  This claim was eventually modified from 222 days to 201.5 days.

21. Dr Meffert in cross-examination said there could have been a conversation in early November 1996 with the plaintiff, in which the plaintiff complained about having to work on weekends.  However Dr Meffert denied that he ever made the promise to the plaintiff that the latter could carry forward any days worked on the weekend or public holidays and take leave in the future in lieu of them.  When cross-examined Dr Meffert was asked:

“	Q:	Is it simply possible that you did say to Mr Shehata what he suggests you said but you’ve simply forgotten because it wasn’t especially important to you and it was many years ago?
	A:	It wasn’t important for me, so it might have happened.”

22. This “weekend claim” was not referred to at all in the plaintiff’s original claim advanced by his solicitors when in March 2002 they wrote formal correspondence to the defendants setting out the plaintiff’s case.  There is, even on the plaintiff’s case, no diary record for this conversation as the plaintiff’s diary starts in September 1995 and stops at the end of July 1996 with the acquisition taking place.  Further, the plaintiff made no written record of Dr Meffert’s promise at any time.  In a practical way, it could be thought that the redeemable value of the disputed promise therefore depended on Dr Meffert firstly remaining alive and secondly acknowledging it.

23. The plaintiff did not state that Dr Meffert had made this oral promise until after the completion of the defendants’ discovery exercise in relation to the other claims made by the plaintiff.  That process produced for the plaintiff the single document which showed that on one occasion on 15 November 1999 the plaintiff had been given time off in lieu, because of an overseas trip.  Mr Joe Law (who ran the accounting unit of Cognis) gave evidence for the defendants and said that the 15 November 1999 application for leave in lieu of holidays was the only application ever filed by the plaintiff.  Mr Law did not personally approve that leave in lieu – a female subordinate did.  The plaintiff says that single document supports his case for the general “weekend claim”.  The defendants say it is the only such document because there was no such general practice or promise as alleged.

24. The history of how the plaintiff presented his claims, is particularly revealing.  The plaintiff as early as 7 September 2001 enlisted the help of Mr Campion who was worldly wise and a close friend of the plaintiff, to send a detailed letter of demand to the defendants.  It did not contain the weekend claim.  This claim was a very late starter indeed.

25. The opposing camps on the weekend claim should be contrasted.  The plaintiff’s case is really based on his own evidence of the conversation in November 1996 : the single document in 1999 showing that on one occasion he was given paid leave in lieu of his weekend overseas : the evidence by Dr Meffert that it was “possible” that he had said the plaintiff could have the general entitlement and the plaintiff’s evidence that after the promise he informed the Cognis accountant Mr Joe Law of Dr Meffert’s promise.

26. The defendant’s case is that the claim is risible.  It includes: that Dr Meffert denied that he ever made the promise; the plaintiff never made the claim (although he had made plenty of others) until after the discovery process which produced the single leave document in 1999 : that he reverse-engineered the entire claim of a general entitlement for 5 years, from that one-off specific approval document : that he had enlisted lawyers (even German ones) and others to help him but this claim never emerged until some years later : that the plaintiff had materially altered (since the litigation began and this claim belatedly emerged) the terms of the supposed promise by Dr Meffert : that Mr Joe Law denied on oath that the plaintiff had ever informed him of the supposed entitlement : that Mr Joe Law said he had not authorized the 1999 leave (a subordinate had) : that there was no written record of this promise anywhere : that the plaintiff’s contract of employment was only finalized in May 1997 and it did not refer to the “weekend” promise of November 1996 : that it was wholly improbable that this two million dollar odd latent liability of the company should exist at all, unrecorded in any of the company books for all those years.  Mr Carolan called it a “try on”.  An assessment of the rival evidential positions and forensic points follows later.

The Annual Leave Claim

27. Butterworth’s Hong Kong Employment Handbook (2^nd Ed.) by Michael Downey at page 613 in my judgment correctly states :

“

Calculating accrued pro rata annual leave pay on termination:

Where an employee commences employment on a day other than the first day of a common leave year, the amount of pro rata annual leave granted for service of less than a full duration of a common leave year is to be determined by calculating the calendar days which have elapsed between the commencement of the employment to the last day of the common leave year.  The total days of service is divided by 365.  The day on which an employee commenced employment is counted for the purposes of determining the number of days which have elapsed.  An employee will be entitled to pro rata annual leave in the same proportion as the fraction, though any fraction of a day must be rounded up to the nearest day.  As the Employment Ordinance explicitly states that calendar days must be used, it is not permissible to calculate by reference to working days or some other reckoning.”

28. There is no doubt that the denominator is 365.  What is the numerator?  Should the pro rata annual leave pay for an employee employed on a continuous basis and who was paid a monthly salary also be calculated by reference to calendar days (as the plaintiff argues) or should it only be calculated by reference to only those days for which the employee was required by the contract to actually work in every week (i.e. excluding weekends and statutory holidays) which is the defendants’ argument?  That defines the issue for determination.

29. In Leung Lai Bun v. Sam Woo Bore Pile Foundation Limited [2003] 2 HKC 210 Deputy Judge Andrew Cheung (as he then was) considered section 41C(1) Employment Ordinance, Cap. 57 (on which the defendants rely) in the context of a Labour Tribunal appeal.  That sub-section reads :

“	41C.	Rate of annual leave pay
		(1)	Annual leave pay shall, subject to subsection (2), be a sum equivalent to the wages which the employee would have earned if he had worked every day during the period of annual leave.”

Under that statutory provision, for the plaintiff the annual leave pay an employee is entitled to, is (subject to immaterial exceptions in sub-section (2)), the equivalent of the amount that employee would have earned if he or she had worked every day during the period of annual employment.  In calculating pro-rata annual leave the denominator should properly be 365 days to divide the annual income.  There is in my judgment no basis for reducing the numerator by diminishing it by the statutory holidays and any other days, such as weekends, for which the employee did not actually need to work.

Miscalculation of pay in lieu of holidays

30. The plaintiff’s approach would obviously produce a more beneficial rate of payment to be awarded to an employee.  I agree with the learned Deputy Judge in Leung Lai Bun [2003] 2 HKC 210, 217F :

“	Whether on his working days, or Sundays or statutory public holidays, [an employee] is entitled to be paid at the same rate even though he does no work on Sundays and statutory public holidays.”

31. In my judgment the plaintiff is correct.  The numerator provides the integer, by reference to calendar days, which allows the fraction from which the full proportion of the days of the entire calendar year of which the employment existed can be derived.  Adopting a further dictum from the judgment in Leung Lai Bun [2003] 2 HKC 210, 217E the defendants’ “argument is fallacious because an employee is entitled to wages, or earns wages, during the whole course of his employment (unless he is on no-pay or other special leave)”.

32. The defendant Cognis paid the plaintiff for 77 days unused annual leave at 77/31 of his monthly salary per day.  In my judgment the plaintiff is entitled to HK$92,000 (monthly salary) x 77/21.7 = HK$326,452 less HK$228,516 paid by the defendant on 31 August 2001 in respect of untaken annual leave = HK$97,936.00.  There is judgment against the 1^st defendant for that amount.

Target Dialogue Claim

33. The plaintiff was intended to get a target dialogue : but there is no record of what it was.  A target dialogue was a form of bonus payment made by Henkel to all employees based on an annual, retrospective analysis of three components : personal, unit and overall Group success.  This bonus was payable under the plaintiff’s contract.  The bonus was set by the employer and was not the subject of agreement by any employee.

34. Cognis adduced the plaintiff’s target dialogue for 2000 (for the year 1999), however, they have adduced no record of what it was for 2001 (for the year 2000) or for 2002 (for the first eight months of 2001).  In correspondence the plaintiff’s solicitors pressed for discovery of the outstanding materials, but the defendants’ solicitors advised that no further disclosable documents existed (which plainly included the missing target dialogue documents).  In the absence of precise evidence the Court having found liability existed, is entitled to proceed on the best available evidence: Chitty on Contracts 29^th ed. Vol. 1 para. 26-007.

35. The plaintiff is not disentitled because of the difficulty of assessing the quantum of the target dialogue.  The court should assess the amount as best it can on the available evidence: Tai Hing Cotton Mills Ltd v. Kansing Knitting Factory (A Firm) [1979] AC 91, 106A–D per Lord Keith of Kinkel (on appeal from Hong Kong).  But the plaintiff here carries the burden of proof.  The plaintiff is entitled to the target dialogue – but it was the plaintiff’s inactivity or omission that led to the position that the proposed calculation put forward by his Cognis colleague was not adopted. 

36. Mr Harris SC submitted that as three years information as to the plaintiff’s target dialogues were available (1997 : HK$121,550, 1998 : HK$56,810, 1999 : HK$192,795) that the Court should adopt their average (HK$123,178) or alternatively their mean (HK$121,550) for the next year 2000 and should also take two-third of that average amount to reflect the January–August 2001 entitlement (HK$82,478) : being HK$206,196 in total.

37. Mr Carolan argued that the plaintiff’s case could only be advanced on the loss of a chance basis.  It followed therefore that the amount to be awarded should have regard to a wide range of factors and imponderables.

38. The target dialogue, it should be noted, on a global performance component basis, had been reasonably consistent.  But the local component had even recorded a zero element in relation to the performance of the Hong Kong unit during one of the three earlier years.

39. An average of what was paid in the previous three years is not appropriate.  The series of three numbers is too short to be statistically meaningful : particularly in view of the major annual total variations and in particular because of the sub-total variations constituting the annual bonus.  To extrapolate any “more likely than not” number from that limited information requires significant discounting to reach the level at which the court can be so satisfied of its existence.  The fluctuations are considerable and material.  In all the meagre evidential circumstances the 2000 target dialogue is only proved to be $90,000 for 2000 and $60,000 for the eight months of 2001: about half more than the worst year, about three quarters of the mean year, about half of the best year.  I award $150,000 against the 2^nd defendant.

Evaluation of Evidence

40. This is a case which turns on “the uncertain testimony of slippery memory”, per Popham CJ in Countess of Rutland’s Case (1604) 5 Co.Rep. 25b, 26a.  The intrinsic value of the evidence and the inherent probabilities derived from the whole case, its history, choreography and pleadings is the reliable guide to where credibility is to be found, rather than a lynx-eyed evaluation based only on demeanour: see Atkin LJ in Lek v. Mathews (1926) 25 Lloyds LR 525, 543 (CA).

41. The plaintiff wandered at important times in his answers in relation to the HK$3.5m claim and the weekend claim which were often garrulous and diffuse.  I find he did this on occasions to avoid confronting the thrust of the questions in cross-examination.  When pressed he sometimes reached for irrelevancies to try and circumvent the very point of the question.  His testimony about the $3,500,000 was I find, but a fond hope, a self-induced belief of no substance.  The most generous appraisal of the plaintiff I can make in relation to the alleged promise of HK$3,500,000 is that while the plaintiff may have mentioned it, Dr Meffert pacified him with a non-committal and unenforceable reply that had no legal effect and certainly there was no formation of a contract.  The plaintiff has wholly overvalued Dr Meffert’s imagined response, which was at most a casual remark of no significance and imaginatively transformed it in his mind into a binding contractual promise.  The same conclusion applies to the “weekend claim”.  I believe Dr Meffert never contractually promised the plaintiff this very significant amount.  Having seen and heard the plaintiff in his sustained and forceful cross-examination, I give no weight at all to the diary reference.  This bare, oral claim fails.

42. The plaintiff said he told a fellow employee (Mr Joe Law) in the administration team of Cognis, that Dr Meffert had on 4 November 1996 agreed to pay him for weekend work.  This happened some time shortly after the conversation in 1996.  By direct contrast, Mr Law said the plaintiff never mentioned to him Dr Meffert’s promise that the plaintiff could carry forward his weekends if he worked them. 

43. In relation to the weekend claim I distinctly prefer Mr Law’s evidence (the financial controller of Cognis) over that of the plaintiff on the point whether Dr Meffert’s promise had been relayed to Mr Law, as the plaintiff said.  If it had Mr Law would have efficiently recorded it and immediately implemented it. 

44. In PVC the plaintiff was earning HK$65,000 a month.  With Cognis that increased to a package of HK$$125,000 a month (including a HK$40,000 housing allowance).  The plaintiff accepted that it was a “high salary”.  The “weekend claim” promise was said to be made in early November 1996.

45. By January 1997 Henkel was pushing the plaintiff to finalise the terms of his written contract of employment.  The plaintiff said in evidence that he took legal advice from a Hong Kong solicitor before he signed the contract.  I find that the written contract of employment was not actually signed until 6 May 1997, although on that day “backdated” to the first day of the plaintiff’s employment with Cognis on 12 July 1996.  The contract contained an orthodox “entire agreement” provision.

46. In cross-examination the plaintiff stated that he had specifically considered it unnecessary to have the “weekend claim” promise enshrined in the written contract of employment and therefore took no steps to do so.  His sole reason for this omission was because he “trusted Dr Meffert”. This makes no sense on any level.  The plaintiff was a resourceful individual, although occasionally professing naivety when it suited him.

47. Dr Meffert said in evidence that it was possible that the plaintiff had floated the idea of the “weekend claim” with him.  But Dr Meffert said they could only console each other that they both had to work so many week days so often for Henkel.  Mr Harris SC questioned Dr Meffert on the basis that the plaintiff may have been “moaning a bit about having to work at weekends”.  It would appear this was a mutual gripe.

48. On all of the evidence, I do not find that Dr Meffert made to the plaintiff any enforceable commitment having contractual force.  It is possible, to use his own word, that Dr Meffert said something to try and placate the plaintiff, but it was at most a congenial gesture of unimportance, carrying no open-ended financial commitment for the defendants.  The subsequent acts of the plaintiff right up to 2004 also militate against it being anything else.  Whatever Dr Meffert said was not important to him, as it contained no contractual implications.  The matter was unimportant to Dr Meffert except, I am sure, until he eventually found out the magnitude of the plaintiff’s claim.

49. Mr Carolan has argued that the weekend claim was a fabrication created after the event.  I need not go that far, having only to conclude, as I easily do, that the plaintiff has not established his “weekend claim”.

50. In summary I find for the plaintiff that :

The balance of the sum for 77 days unused annual leave due on termination was underestimated and the sum due is :		$97,936
Target dialogue bonus as assessed	=	$150,000
Total award to plaintiff	=	$247,936

51. The plaintiff is entitled to interest on that sum from the issue of the writ.

52. I award the defendants 95% of the costs of the action (to reflect the plaintiff’s success) to be taxed unless agreed, on a nisi basis, (in default to become absolute within 21 days).