Danh Dang v Cabramatta Community Centre

[2014] FWC 1532

[2014] FWC 1532

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Danh Dang
v
Cabramatta Community Centre
(U2013/13793)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 21 MAY 2014

Application for relief from unfair dismissal.

[1] On 20 September 2013, Mr Danh Dang (the applicant) applied for an unfair dismissal remedy in relation to the termination of his employment by Cabramatta Community Centre (the respondent) on 2 September 2013. The matter was referred to me for determination, and hearings were conducted on 3 and 4 March 2014. Submissions were made in writing, with final submissions received on 1 April 2014. The applicant was represented by Mr C McArdle, solicitor, and the respondent by Mr S Forster, from the Australian Federation of Employers and Industries.

[2] The following gave evidence on behalf of the applicant (in addition to the applicant himself):

● Dr Simon Emsley; and
● Mr Gary Cachia.

[3] The following gave evidence for the respondent:

● Ms Juan Reinoso (the respondent’s acting Chief Executive Officer); and
● Ms Judy Wesley (the respondent’s Chief Financial Officer).

[4] At the time of his dismissal, the applicant occupied the position of Finance Manager, a role he had occupied for around five years. He is 60 years old and had worked for the respondent in various roles, commencing as a part time bookkeeper in 1987. He has been given substantial financial support by the respondent to upgrade his professional qualifications over the years. 1 This included the payment of study leave and tuition fees for both a graduate diploma and a master’s degree.2 The respondent is a not-for-profit charity that is predominantly government funded. It employs approximately 150 staff and in the financial year to June 2013 had total revenue of nearly $10 million, most of which came from the Commonwealth government.

[5] The respondent dismissed the applicant on the grounds that he had:

(a) Deliberately and dishonestly abused his role in administering the respondent’s staff loans scheme, for which he was also a beneficiary, by processing loans for himself in such a way whereby he deliberately avoided repayment to the respondent of a compulsory 6 percent fee applicable on the loan amount;

(b) Deliberately overpaid himself a substantial amount of superannuation;

Acted in an inappropriate and intimidatory manner towards the then Human Resources Manager of the respondent, Mr Haider Syed, and the then CEO of the respondent, Ms Jhan Leach, when he approached both of them outside the respondent’s premises on 22 July 2013 and proceeded to:

● Mock Ms Leach;

● Take photographs and/or video them; and

● When asked by Mr Syed why he was taking “photographs” become agitated and aggressive towards him, which included approaching him with his fists clenched.

(c) Breached the respondent’s confidence when in or around late February 2013, without prior authority to do so, forwarded an email exchange between himself and Ms Leach to the Australian Services Union (ASU) that included the salary details of nine senior managers at the respondent, collectively referred to as the ‘executive management team’; and

(d) Failed to follow several reasonable and lawful directions to return a motor vehicle owned by the respondent during a lengthy period of unpaid leave contrary to a specific policy.

[6] The respondent also alleged that other instances of misconduct came to light after the dismissal, including that the applicant was negligent by paying thousands of dollars on an e-tag account, for which he was responsible, which was never used for business use and for which invoices were received by the applicant which were never opened.

The Evidence

[7] I will deal with the evidence in relation to each of the allegations in turn. I state at the outset that I found the applicant to be a very unpersuasive witness. He gave a good impression of making up his evidence as he went along and when asked to explain obvious discrepancies would often answer ‘I don’t know’, or ‘I can’t explain’. 3 He often contradicted himself.4 The respondent’s witnesses, especially Ms Wesley, were by contrast clear and consistent. Where there is a conflict between the applicant’s evidence and that of the respondent’s witnesses I prefer the latter. I should add that I found the evidence of Mr Cachia and Mr Wesley unhelpful. In particular, neither of them provided evidence that assisted me in determining whether the applicant had engaged in the alleged misconduct.

The staff loans scheme

[8] The respondent has a staff loans scheme which was established to provide employees with short term loans when they are experiencing hardship or need urgent monies and where a loan from a financial institution is not possible. For example, an employee might access a short term loan for funeral expenses after the death of a family member, or for a health emergency etc. 5

[9] Whenever an employee borrows money from the respondent they are charged a flat 6% administration charge calculated on the principal amount borrowed. 6

[10] The applicant was responsible for processing staff loans. He also accessed the scheme as a beneficiary on five separate occasions. 7

[11] In administering the staff loans scheme, the applicant was responsible for

● entering the relevant amount to be repaid into the respondent’s accounting software Attaché (i.e. the principal and administration charge);
● entering into Attaché the relevant employee account where the principal was to be recorded as a debt owing by the relevant employee;
● entering into Attaché the relevant CCC account where the administration charge was to be shown as a credit;
● establishing the appropriate deductions to be made from a relevant employee’s fortnightly wage to comply with their repayment obligations; and
● correcting any errors identified in Attaché if an under/over payment or deduction occurred. 8

[12] In or around early August 2013, as part of the financial year end process, Ms Wesley had one of her colleagues undertake a routine reconciliation of the respondent’s staff loans transactions. This raised a concern that the applicant was processing loans in a way whereby he avoided the repayment of the administration charge. Ms Wesley reported the matter to Ms Reinoso, who advised her to investigate the matter. Ms Wesley found that the applicant had on three occasions accessed a staff loan without paying the administration charge and that on two of these occasions the charge was shown in Attaché as having been processed and then immediately reversed. She examined all account entries to see if the payment could have been made such that the reversal was explicable in some way; however, no such payments were received by the respondent. In the 30 plus loans transactions processed by the applicant that were examined by Ms Wesley, the reversal and failure to charge a fee only occurred on the applicant’s own loans. 9

[13] On 19 August 2013, Mr S Forster wrote to the applicant on behalf of the respondent alleging that he may have acted fraudulently by deliberately processing three staff loans for himself without an administration charge. These loans were one made on 1 April 2010 for $15,000, one made on 18 November 2011 for $1000 and one made on 19 September 2012 for $2500. The total value of the administration charges not paid was $1110. It was alleged that for each of these loans the applicant properly recorded a 6% administration charge on his employee debtor file at the time the loan was processed, but this debt was immediately reversed as a credit in the same account, rather than a credit to the respondent. The effect of these transactions was to make it appear as though the applicant was incurring an administration charge, when in reality he was not. 10

[14] The letter included the following:

‘If proven, this behaviour amounts to fraud and possibly theft. It will be considered by CCC to be serious misconduct within the meaning set forth in regulation 1.07 of the Fair Work Regulations 2009 and will result in a summary termination of your employment.’ 11

[15] The letter noted that there were instances where the applicant correctly processed loans to other employees, as well as himself. This was said to show that he was well aware of the requirement to include a 6% administration charge on all staff loans.

[16] The letter from Mr Forster attached a series of documents. This included confidential minutes of the executive meeting of 9 February 2010 which approved the applicant’s short-term loan of $15,000. The minutes noted that the loan would be cleared by July 2010 at the latest and would include repayment of a 6% administration fee to the respondent. A screenshot from Attaché was also attached which recorded the initial payment of the $15,000 loan, and the record showing its repayment. No administration charge was recorded. 12

[17] On 23 August 2013, the applicant responded to Mr Forster in writing about a number of the allegations made against him. He denied that he had acted fraudulently or that his conduct amounted to theft. He claimed that the letter he sent ‘requested a pro rata admin fee rate as, in the history of managing the scheme, most staff paid it off over an 18 month period, whereas I was requesting a repayment within a 4 month period.’

[18] The applicant continued:

‘Normally the loan admin fees are entered when the money is transferred to the staff’s bank account, as has been shown in the other transactions the CCC has referred to in its Allegation letter. But, because I had requested a pro rata, not a flat, admin fee, the amount of that fee could not be determined on the drawdown/transfer date. That was why it was not entered at the outset.

I am still not sure if I was requested to pay the admin fee at the full 6% rate or the pro rata rate, nor if the fee was waived due to the extraordinary nature of the loan, the short final payment period and the other circumstances surrounding the loan. The decision motion in the confidential minutes provided still do not clarify this and, as I have said you have chosen not to provide the loan contract for this loan.

I met my final payment during the CCC end of the year/start of year audit/change-over period, which involves higher level of stress and increased workload. Further, 7 months had passed since the request and email from the former CEO. Further, I believe I may have been told by the then Executive Officer Finance that the admin fee was waived because of the short repayment period. While I am not sure of this, it may be mentioned in the loan contract I have not been provided. I was anxious to pay back this loan to CCC as I had promised and I did so, 5 months later (rather than four). All these circumstances would lead a reasonable person to surmise that I either forgot to follow up what the rate was and apply it or I believed it was waived.

During a period like this the CEO and or Executive officer finance - whoever acquitted the loan should have advised me of the missing rate and checked on the agreed terms as I do with other staff loans on acquittal. Normally the Executive Officer Finance would have requested me to provide her my loan account to make sure that admin fees was correctly charged and paid, in this case it seems this did not happen.

I wish to emphasise that, according to my request for a pro rata rate, the amount raised in the allegation is an incorrect amount and it should be a maximum of $350.

This is not fraud or an attempt to not pay any amounts due, as I never intentionally misled anyone and even the documents provided do not state $900 amount applied to this loan.

My long service leave and assets were put as guarantees for this loan and I am willing to repay the admin fee if I was meant to pay it.’ 13

[19] In relation to the two other smaller loans, the applicant claimed in the letter he had not deliberately avoided having to pay the administration fee. He said he was suffering from stress and this led him to make mistakes. He said someone else should have checked on what he was doing. He offered to pay back the money he owed, and attached a cheque for $1,110.’ 14

[20] During cross-examination, the applicant said that his failure to pay the administration charge in relation to the two loans of $1000 and $2500 was a ‘technical error’. 15 When it was put to him that he only made errors in relation to his own loans he said ‘it was few other people’16 but he was unable to produce any evidence that he made mistakes with anyone else’s loans. He claimed that he only made the mistakes because of stress. When asked why the stress only affected him when he was processing his own loans he answered ‘I don’t know’.17

[21] In relation to the $15000 loan, he referred back to his letter of 23 August 2013. He referred to the two possible explanations he gave in that letter. One explanation was that the administration fee was to apply at a pro rata rate, and the second was that the Executive Officer Finance had told him the fee had been waived. However he was not sure which one applied 18. While he did not deny that the Executive Meeting minutes said the 6% administration fee was payable, he then said he was sure the Executive Finance Officer had told him the fee had been waived.19 Indeed he later said both that the fee was to apply on a pro rata basis and that it had been waived.20

[22] I find the applicant’s evidence about why he failed to pay the administration charge on the three staff loans to be utterly implausible. Why would he only make ‘mistakes’ in relation to his own loans? Moreover even if his claim that the charge on the largest loan was to apply on a pro rata basis was true (which would be contrary to the executive minutes), that could hardly explain why he made no payment at even the ‘pro rata’ rate. There is no evidence that the fee was waived. Indeed the evidence of the executive minutes is quite to the contrary.

[23] Based on the evidence, I am satisfied that the applicant took advantage of the fact that he administered the staff loans scheme to evade paying the administration fee on three loans. The effect was to avoid paying more than $1,110 he owed the respondent. His actions were both deliberate and dishonest.

Overpayment of superannuation

[24] The applicant was responsible for processing the payroll for around eight managerial employees (including himself). All the other employees had their pays processed by the junior accountant - though overseen by the applicant. He had been involved in processing pay for the respondent for 26 years. 21

[25] An analysis of the payroll records of the respondent demonstrate that the applicant significantly overpaid himself (and one other manager, Ms Bartels, to whom he was close) superannuation. In particular, he incorrectly paid himself superannuation on overtime by cashing out ‘time in lieu’ which was approved at overtime rates but treating it as ‘normal pay’. He calculated superannuation, not on his ordinary time earnings, but on his total earnings including overtime hours. 22

[26] This was confirmed by the respondent’s external auditors, Calibre Business Advisory, whose report in March 2013 included the following:

‘Based on this analysis it appeared that two employees received superannuation contributions materially in excess of the minimum Superannuation Guarantee Contribution (“SGC”).

An extract of this is shown at Appendix B which shows Danh Dang and Ulrike Bartels receiving superannuation in excess of the minimum 9% SGC.

Based on further investigation it appears that additional SGC was paid based on overtime wages received by these employees. SGC is generally not required to be paid in respect of overtime salaries.

Furthermore, it appears other employees who had received overtime wages were not provided with SGC on those wages. This appears inconsistent with the calculation of SGC for the above two employees.’ 23

[27] In his letter of 31 July 2013 to Mr Forster, the applicant said that he was in error in believing that the Superannuation Guarantee was calculated on overtime worked as it was on ordinary pay. He claimed that he applied the mistaken methodology to all workers for the respondent -- not just himself. He was alerted to the error in this calculation methodology, he claimed, when he attended payroll training which included ‘updated’ superannuation guarantee information. He claimed that at that point he understood that overtime work was not eligible to be included in the superannuation guarantee calculation and he reported his error to the CEO. 24

[28] During his oral evidence he claimed that all employees who worked overtime had superannuation paid on their overtime. He claimed that he only realised this was wrong in mid-2012, when he advised the then CEO Ms Leach and told the junior accountant to stop the additional payments. 25

[29] When the Calibre audit findings were put to him that only he and Ms Bartels received superannuation on his overtime he denied knowing whether the junior accountant paid superannuation on overtime for those staff for which she was responsible. 26

[30] When it was pointed out that another member of the executive - for whose pay he was responsible - had not been paid superannuation on her overtime he said he could not recall - but it must have been a mistake on his part. 27

[31] The applicant claimed that the payment of superannuation on his and Ms Bartels’ overtime was an ‘honest mistake’ and that he was unaware of how to calculate superannuation. This strains credulity. It is frankly absurd to suggest that a qualified accountant would be unaware that SGC contributions only apply to ordinary time earnings. Moreover, the applicant only made this ‘mistake’ in relation to himself and one other manager, Ms Bartels, to whom he was close. I conclude that the applicant abused his position to gain a financial advantage for himself by arranging for the respondent to overpay superannuation contributions on his behalf. This conduct was deliberate and dishonest.

The incident of 22 July 2013

[32] On 25 July 2013 Mr Forster wrote to the applicant on behalf of the respondent. The letter referred to what it described as ‘a disturbing incident on Monday, 22 July 2013’ where it was alleged that he had ‘acted in an inappropriate, intimidating and threatening manner towards the Chief Executive Officer of CCC, Ms Jhan Leach and to the Human Resources Manager, Mr Haider Syed.’ Mr Forster advised the applicant that he was being stood down until he responded to the allegations against him.

[33] The letter included the following:

‘On 22 July 2013 you were observed to be loitering outside CCCs premises at the Corner of Railway Parade and McBurney Road in Cabramatta at various times between approximately 1:30 pm and 4:10 pm. This is despite Monday being a day that you are not fit to work.

At approximately 4:10 pm, Ms Leach and Mr Syed emerged from CCC. It is alleged that you approached the two employees and commenced a conversation by saying words to the effect: “What’s going on?” To which Ms Leach replied with words to the effect: “I’ve been kicked out”.

It is alleged that you replied with words to the effect: “Oh really?” and then started laughing at Ms Leach. It is alleged that you then took a mobile phone out your pocket and proceeded to point it towards Ms Leach and Mr Syed as if you were taking a photograph of them.

Mr Syed claims that he said to you words to the effect: “What are you doing? Why are you taking a photo?”

It is alleged that in reply you took two or three steps to come within 1 metre of Mr Syed and that you responded in aggressive tone with words to the effect: What? What? What’s it to you? Huh? Huh?”

Mr Syed alleges that as you approached you had your fist clenched and that your chest and face were protruding out as if you are seeking to initiate a physical confrontation. Mr Syed alleges that your behaviour was intimidating and threatening.

Mr Syed claims that he took a step back from you and that you proceeded to point your mobile telephone in their direction again as if you were taking a photograph. It is alleged that you continued to laugh at Ms Leach in a manner that was mocking.

You are directed to respond to the allegation that you committed serious misconduct during this incident. 28

[34] On 31 July 2013 the applicant responded to Mr Forster’s letter. He denied that he was loitering outside the respondent’s premises on 22 July 2013. He said he was there with his sister going about his normal off-duty life. He denied that he was in Cabramatta at around 1:30 pm on the day in question. He said that he saw Mr Syed and Ms Leach just outside the library, about 30 metres away from the respondent’s premises. He denied saying the things that he was alleged to have said or saying words to the effect of those alleged. He claimed that the allegations were part of an ongoing campaign to misrepresent his actions with a view to terminating his employment unlawfully forced him to resign without just compensation. 29

[35] The hearing was shown the video that the applicant took with his phone of the incident. When asked during his cross-examination why he had taken the video, he said it was because he was depressed and stressed. He claimed he was at the scene by accident and was present for dinner with his sister. 30 When asked why he did not just walk away he said he just wanted to say hello to Ms Leach. He said he took the video because he was worried about Mr Syed who he said was harassing and intimidating him. The video would be evidence ‘if he did something to me’.31

[36] When the applicant was asked why he laughed after Ms Leach said she had been ‘kicked out’, he said he did not know. 32 He denied he was trying to make fun of Ms Leach’s misfortune.33

[37] Mr Syed has moved to Qatar with his family, and was unable to be called as a witness. Nor was Ms Leach called. I therefore have little evidence before me beyond the video and the testimony of the applicant. Based on that evidence, I find that the applicant went up to Ms Leach and Mr Syed and filmed them, and laughed when Ms Leach told him she had been ‘kicked out’. This behaviour was inappropriate. I make no findings about the rest of the allegations against the applicant concerning this incident.

Refusal to Return Motor Vehicle

[38] According to Ms Reinoso, up until early to mid-2012 the applicant had a salary sacrificing arrangement for a motor vehicle. At that time he asked to cease the salary sacrificing arrangement and instead requested that he ‘garage’ a pool car. 34 This increased the amount of cash he received as part of his remuneration by around $5,000 a year.35 This was an arrangement similar to that applying to Ms Leach.36

[39] Under the terms of the respondent’s motor vehicle policy there is a clear distinction between vehicles that are provided for private use on a salary sacrifice basis and those that are merely ‘garaged’ at an employee’s home. Staff who garage vehicles are not permitted to use these vehicles for private use without specific permission. They have to reimburse the cost of any fuel used for private use. The policy specifically states that alternative garaging arrangements are to be made for vehicles when an employee who regularly garages a vehicle is on leave for more than one week. 37

[40] In February 2013, the respondent received advice that the applicant would be absent for a period of at least four weeks. It decided to seek to have its vehicle in the applicant’s possession returned in accordance with its motor vehicle policy. 38 On 18 February, Mr Syed wrote a letter to the applicant which included the following:

‘I write regarding the return of the Cabramatta Community Centre (CCC) vehicle in your possession.

As you would be aware the CCC vehicle that you are currently garaging Toyota, Hilux, registration number CID 92 C is a vehicle which is normally a resource that is shared with other CCC employees during the working day and is not designated as a fringe benefit for you.

It is understood from your medical certificate that you will not be returning to work in the next four weeks, I am therefore directing you to return the vehicle to Jhan Leach, by close of business on Thursday, 21 February 2013 so that the vehicle can be utilised again by other employees. Your future access to the vehicle will be discussed with you when you return to work.’ 39

[41] The applicant replied by email on 20 February 2013 that all managers had a car as part of their salary package. He asserted that the car was part of his salary which meant that he retained possession of it while he was still an employee even though he was on leave. 40

[42] The respondent considered the applicant to be confused so it sent him further correspondence explaining its decision and again requested that the vehicle be returned. On 21 February 2013 Mr Syed wrote a letter to the applicant which included the following:

‘I refer to your email dated 20 February 2013 in which you indicated an intention not to return a CCC owned vehicle in your possession following our request that you do so on 18 February 2013.

Based on your email, we understand your view is based on your belief that the CCC vehicle is provided to you as part of your salary package.

Unfortunately, your view is incorrect and contrary to the arrangement made in 1 July 2012, when you agreed with CCC to garage the vehicle in accordance with Clause 6 of the CCC Motor Vehicle Policy. The policy is attached for your records.

As you can see, Clause 6.8 of the Policy allows CCC the right to make arrangements for the return of garaged vehicles by employees during periods of leave greater than 1 week.

The purpose of this policy, as previously explained, is to give CCC the ongoing benefit of its vehicle during your absence.

According to the above, you are hereby directed to return the vehicle and fuel card assigned to it that are in your possession, without delay and by no later than close of business Monday, 25 February 2013.

Please contact Jhan Leach on ... before close of business Friday, 21 February 2013 to make appropriate arrangements to comply with this reasonable direction.

Please note, if you failed to comply with our request, it may be treated as a failure to follow a reasonable and lawful direction, and disciplinary action may be taken against you as a consequence.’ 41

[43] On 22 February 2013 the ASU wrote to the respondent on the applicant’s behalf. In its letter the ASU said that it had been advised by the applicant that his car was part of his salary package and that he was therefore entitled to retain possession even while he was absent on sick leave. The letter included the following:

‘We wish to put CCC on notice that if any disciplinary action is taken against Danh, as threatened in your letter dated 21 February 2013, that letter will be produced in any dispute proceedings as well as to the insurer as evidence of the bullying and harassment that CCC is accused of carrying out against Danh.

We request that you respond to this letter within 7 days with detailed supporting evidence to show that a car is not included in Danh’s salary package or alternatively advised that the demands made to Danh to return his car while he was absent from the workplace due to his workplace injury are withdrawn and will cease.’

[44] On 27 February 2013 the respondent wrote back to the ASU. Its letter included the following:

‘Cabramatta Community Centre (CCC) is incredibly disappointed in the union’s response, in particular concerning your suggestion that our attempt to seek the use of our own vehicle during Danh’s absence constitutes behaviour of a bullying and harassing nature.

CCC rejects this assertion as it rejects your suggestion that Danh’s vehicle is part of his salary package....

As at 30 June 2012, Danh ceased the salary packaging arrangement whereby he paid for his vehicle directly from his own salary.

Instead, he agreed to garage a CCC owned vehicle, whereby he can use it for work related travel and “only minor or incidental” personal use.

The benefit to Danh through this arrangement was that he still had a vehicle for travel to and from work, and he could now utilise the entire $16,500 tax-free component of his wage for other third party expenses -- which he has done.

As Danh has used his entire tax-free wage component, and is now refusing to return our vehicle, which is not for his own personal use (save for the minor use mentioned above), his actions place CCC in breach of its taxation obligations to the ATO....

Now that the ASU is properly informed as to the nature of Danh’s vehicle usage, it hopes the ASU would assist to ensure its speedy return. This will limit the potential for issues to arise with the ATO, and it will also give us the chance to use our vehicle for its purpose -- that is, work-related usage.’ 42

[45] The ASU responded on 28 February 2013, continuing to assert that the applicant had a contractual entitlement to retain possession of his car. It also threatened to commence proceedings under the general protection provisions of the Fair Work Act 2009 on the basis that the respondent was engaging in adverse action against the applicant because he had complained about his manager and had submitted a worker’s compensation claim. 43

[46] Mr Syed, on behalf of the respondent wrote back to the ASU on 15 March 2013 strongly denying that the vehicle was part of the applicant’s salary package. The letter included the following:

‘To begin, we categorically deny once again that Danh’s vehicle is part of his salary package.... throughout most of his employment Danh has paid for the use of a vehicle by a salary packaging arrangement.

The entitlement that Danh claims now, that is, as he receives a vehicle in addition to his salary package, is completely at odds with this historical arrangement and the agreement between the parties for Danh to garage a fringe benefit exempt vehicle....

To complete our dissatisfaction, CCC has received confirmation that it must now pay fringe benefits tax on the vehicle in Danh’s possession.

In consideration that the financial damage to CCC has already occurred, and in the interests of avoiding the stress associated with your union’s ongoing threats of legal action against CCC for simply attempting to exercise its contractual rights, it no longer demands that Danh return the vehicle at this point in time.

Instead it reserves the right to address this at a later date.’ 44

[47] During cross-examination, the applicant agreed that from mid-2012 his pay was structured the same as Ms Leach, rather than other managers such as Ms Reinoso. 45 He agreed that he had specifically asked for the same arrangement as Ms Leach.46 However unlike her, he claimed, he was not on a ‘garaging’ arrangement as he did not have a ‘written agreement on that.’47 He also claimed that he could not have been on a garaging arrangement as the employer did not take his car back when he was on leave.48 He agreed that he refused to return the vehicle.49

[48] I am satisfied, based on the evidence, that from mid-2012 the applicant no longer received a vehicle as part of a salary packaging arrangement. Instead he ‘garaged’ a vehicle belonging to the respondent. The respondent was well within its rights to require that the applicant return the vehicle. In refusing to do so, the applicant was refusing to comply with a lawful and reasonable direction. Further, I do not believe that this was because the applicant was confused. He occupied a senior financial position with the respondent. It is implausible that he was confused about the motor vehicle policy or his entitlements. He simply chose to disobey his employer.

Breach of confidence

[49] In its response of 28 February 2013 concerning the motor vehicle, the ASU included a letter from the applicant as well as email attachments that contained confidential information about managers’ salaries. The emails sent by the applicant to the ASU were marked confidential and included the salaries of eight other employees. 50

[50] In its response to the ASU of 15 March 2013, the respondent explained that the applicant had breached its confidence by disclosing employee remuneration packages. It said that such behaviour was not only unacceptable for the applicant, but also demonstrated a lack of foresight by the ASU who were complicit in his breach of confidentiality.

[51] In his letter of 31 July to Mr Forster, the applicant said that the email in question was directed to Mr Syed. Both he and the applicant or employees of the respondent and there was no breach of confidentiality.

[52] During his cross-examination the applicant said he had he had acquired the salary details of the managers because of his role in preparing the executive payroll. 51 He agreed that the details were not available from the publicly available audit report.52

[53] I am satisfied that the applicant inappropriately passed on to the ASU confidential information he had obtained as Financial Manager with the respondent about the salaries of other managers in support of his position with regard to the motor vehicle. This amounts to a breach of trust.

The e-tag account

[54] On or around December 2013 (that is, after the dismissal of the applicant), Ms Wesley discovered that one of the respondent’s e-tags had not been used for business use since it was first issued. She investigated the matter and found that it was a tag issued by the applicant and that he had complete control of the e-toll account and received all invoices for it. The investigation also showed that no invoices were filed physically or electronically. 53

[55] During her cross-examination, Ms Wesley expanded on this.

‘So in December there was a query from one of our managers regarding a charge to her cost code because she didn’t have a vehicle and upon investigating we looked at the number of e-tags that were there and the number of vehicles we have in our fleet and we found that one of the e-tag usages was excessive and so we further investigated to try to identify who that belonged to. So we looked for a list of e-tags and when we looked at the list this particular e-tag which was the actual very first e-tag that was issued back in 2005 and we didn’t know who it belonged to. So we had some gaps in the listing that we had, so that we completed an audit exercise where we asked each vehicle owner to provide an e-tag number and as a process of elimination we found that this e- tag did not belong to anybody employed at the moment.’ 54

[56] According to Ms Wesley, over the past few years the account has been responsible for over 20% of the total e-tag charges to the respondent. The applicant issued the e-tag in question, and was responsible for paying the accounts. He was the authorised contact for the respondent with the toll company. 55 The applicant had complete control over the account and the statements were e-mailed to him.56 The e-tag was clearly not being used for business purposes because it had unusual times such as 10 pm at night and 2 am in the morning, and whoever was driving the vehicle generally left Cabramatta during business hours and returned at the end of the day.57

[57] During cross-examination, the applicant agreed he was responsible for paying the e-tag bills. 58 He said that he opened the invoices.59

[58] I am satisfied that the applicant allowed the e-tag in question to be used fraudulently. At best this was a case on the part of the applicant of serious negligence.

The applicant’s grievance

[59] On 17 December 2012 the applicant lodged a grievance against Ms Wesley on the grounds of:

1. Removal of responsibilities;

2. Ineffective response to allegations of bullying;

3. Encouragement of bullying; and

4. Attempted prevention of access to monies due.

[60] I do not intend to summarise the evidence surrounding the grievance as I am satisfied that it had no causal relationship to the applicant’s dismissal. Most of the complaints related to what the applicant perceived to be a reduction in his status and an offer the respondent made to him of a voluntary redundancy. None of the evidence suggested that the applicant had been in any way treated unfairly. Indeed, given my other findings about the applicant’s conduct, the offer of redundancy was generous.

Consideration

[61] Section 387 of the Fair Work Act 2009 provides that in considering whether it is satisfied to that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

‘(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.’

[62] I will consider each of these issues in turn.

[63] I am satisfied that the respondent had more than one valid reason for the dismissal of the applicant. He abused his position as Finance Manager deliberately to obtain significant financial benefits for himself to which he was not entitled, both through overpaying himself superannuation and through failing to pay the required administration charge on three staff loans. He also refused to comply with a reasonable and lawful direction to return the respondent’s vehicle while he was on leave. Any of these three matters could have separately provided a valid reason for his termination. I have not given much weight to the events of 22 July 2013, the breach of confidence with regard to the managers’ salary details or the e-tag. While the applicant’s conduct in relation to each of these matters was inappropriate, they by themselves would perhaps not constitute valid grounds for dismissal.

[64] I am satisfied that the applicant was well aware of the allegations against him in relation to the three matters that I have found constituted valid reasons for his dismissal. He was given the relevant details of the allegations in writing, and was given an opportunity to respond to those allegations in writing.

[65] The applicant was not unreasonably denied the opportunity to have a support person present at any relevant meetings. The applicant was dismissed for serious misconduct not for poor performance. The respondent is not a large organisation; nevertheless it had the benefit of assistance from its employer association. The procedures it adopted in effecting the applicant’s dismissal were appropriate given its size etc.

[66] I have considered whether the applicant’s personal circumstances, including his health, age and long service with the respondent in any way made his dismissal unfair. I am satisfied that they did not. His behaviour was deliberate and dishonest. He sought to enrich himself at his employer’s (and indirectly the taxpayer’s) expense.

Conclusion

Mr Dang’s dismissal was not harsh, unjust or unreasonable. His application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

C McArdle, solicitor for the Applicant

S Forster, Australian Federation of Employers and Industries for the Respondent.

Hearing details:

2014

3, 4 March

Final written submissions:

2014

1 April

 1   Exhibit C3, attachment 56

 2   PN975-977

 3   See for example, the exchange at PN854-865

 4   See for example his evidence in relation to whether the junior accountant paid other employees superannuation on their overtime PN989, 999, 1001, 1300

 5   Exhibit C3, paragraph 38

 6   Exhibit C3, paragraph 239, attachment 12

 7   Exhibit C3, paragraphs 239-240

 8   Exhibit C3, attachment 12, page 2

 9   Exhibit C4, paragraphs 32- 35

 10   Exhibit C3, attachment 12

 11   Exhibit C3, attachment 12

 12   Exhibit C, attachment 12

 13   Exhibit C, attachment 13

 14   Exhibit C3, attachment 13

 15   PN817

 16   PN854

 17   PN860

 18   PN923

 19   PN942

 20   PN943

 21   PN979

 22   Exhibit C3, paragraphs 206-216, attachments 52 and 53

 23   Exhibit C, attachment 55

 24   Exhibit D3, attachment E

 25   PN983-986

 26   PN999

 27   PN1004

 28   Exhibit D3, attachment D

 29   Exhibit D3, attachment E

 30   PN1040-1043

 31   PN1047

 32   PN1048

 33   PN1072

 34   Exhibit C3, paragraph 165

 35   Exhibit C3, paragraph 168

 36   Exhibit C3, attachment 42

 37   Exhibit C3, attachment 41

 38   Exhibit C3, paragraph 169

 39   Exhibit C3, attachment 43

 40   Exhibit C3, attachment 44

 41   Exhibit C3, attachment 45

 42   Exhibit C3, attachment 47

 43   Exhibit C3, attachment 48

 44   Exhibit C3, attachment 49

 45   PN1134-5

 46   PN1146

 47   PN1148

 48   PN1151

 49   PN1160

 50   Exhibit C3, attachment 48

 51   PN1166

 52   PN1174

 53   Exhibit C4, paragraphs 36-37

 54   PN1737

 55   Exhibit C4, paragraph 43

 56   PN1739-1740

 57   PN1749

 58   PN1188

 59   PN1198

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