A SECOND executive with fledgling eye laser firm CustomVis is involved in legal action with his former employer and rival eye laser surgery company Q-Vis Ltd, an investigation by WA Business News has found.
A SECOND executive with fledgling eye laser firm CustomVis is involved in legal action with his former employer and rival eye laser surgery company Q-Vis Ltd, an investigation by WA Business News has found.
Simon Gordon last year won an unfair dismissal claim against Q-Vis and is pursuing common law action against the company in the WA Supreme Court.
Last week, WA Business News revealed CustomVis CEO Paul van Saarloos was the subject of a writ from Q-Vis, which has alleged he breached his contract by resigning from the company in November 2000.
There is no legal action occurring directly between Q-Vis and CustomVis. Rather, it is between Q-Vis and two of its former employees, each of whom is now a director of CLVR Pty Ltd, which trades as CustomVis.
Mr Gordon joined CustomVis as a director on September 1 this year. He was previously the former global director of sales and marketing for Q-Vis.
The Industrial Relations Commission first awarded Mr Gordon £46,500, the maximum allowable compensation payment, in May 2001 after Q-Vis was found to have dismissed him unfairly. Q-Vis’s appeal against this decision to the WAIRC Full Bench was dismissed in September 2001, and in February this year the company lost – in a unanimous decision – a second appeal to the WA Supreme Court’s Court of Appeal.
Q-Vis lodged the appeals on the basis that Mr Gordon was pursuing common law damages against the company and was thus ‘double-dipping’ on his entitlements.
But the presiding judge, Justice Anderson, said in part: “The mere fact that the victim of an unfair dismissal has started other forms of action in order to obtain relief arising from the fact of his or her dismissal does not amount to so-called double-dipping”. The two other sitting judges supported Justice Anderson’s comments.
It is understood Mr Gordon has lodged a statement of claim in the Supreme Court alleging breach of contract and claiming damages on the basis that Q-Vis did not release share options owing to him when it was required to do so.
In Feburary this year, Q-Vis lodged a writ against its former managing director and chief scientific officer, Dr Paul van Saarloos, alleging he breached his employment contract by resigning. Q-Vis is claiming damages on the basis it lost Dr van Saarloos’ services when he had 20 months to serve of a three-year contract.
In part, Q-Vis’s Statement of Claim says: “In addition, but for the defendant’s resignation, he would have remained employed by, and contributed to the commercial efforts of, the plaintiff for the remainder of the three-year term, thereby enhancing the opportunity for ongoing improvement in the Q-Vis laser and the plaintiff’s share price”.
The Supreme Court held its first hearing into the case in July.
Dr van Saarloos last year lodged a claim for unfair dismissal against Q-Vis in the WA Industrial Relations Commission. The case was settled out of court after Mr Gordon won his claim in the WAIRC against Q-Vis for unfair dismissal.
Speaking to WA Business News last week, Dr van Saarloos said he did not wish to comment on continuing legal proceedings.
He was confident of CustomVis’s prospects for its own laser technology and welcomed any success Q-Vis might have in the future.
“I’ve still got lots of options in the company and I hope they succeed. I would actually be very happy for them to be a competitor; then there would be at least two players – and I know of a third as well that’s close,” Dr van Saarloos said.
The two companies, Q-Vis Ltd and CustomVis Pty Ltd, are each developing solid-state refractive lasers that are designed to correct common eye disorders like near and far-sightedness. Corrective lasers have to date relied on argon gas, which can be unstable and which needs to be regularly replaced. Solid state lasers are, in theory, safer and offer more accurate treatment.
Q-Vis Ltd, backed until a few months ago by Kerry Packer, suffered a major setback in February this year, when US trials of its laser revealed under-correction in three of 13 patients.
This news caused the company to restructure a rights issue that was to raise about $8 million. The raising was not underwritten, as it was initially intended to be, with the result that just $110,000 was raised.
The company was forced to cut staff numbers to reduce its cash-burn rate, and its share price continued a fall that began in May 2001. In early 2001, Q-Vis shares traded at more than $5 each, valuing the company at about $200 million; this week, the same shares were trading near just 12 cents each.
In June, Lenvoka Pty Ltd, a subsidiary of Mr Packer’s Consolidated Press Holdings, sold down most of its stake in Q-Vis at a loss, and its representative on the Q-Vis board, John Evans, resigned as a director of Q-Vis.
Mr Evans declined requests from WA Business News to discuss Q-Vis’s activities during his time as a director.
