[2017] FWC 5027

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nick Belan
v
National Union of Workers-New South Wales Branch
(U2016/7463)

DEPUTY PRESIDENT DEAN

SYDNEY, 19 OCTOBER 2017

Application for relief from unfair dismissal - allegations of serious misconduct relating to misuse of union issued credit card - dismissal for valid reason - not otherwise harsh, unjust or unreasonable - application dismissed.

[1] Mr Nicklouse (Nick) Belan was employed as an Organiser with the National Union of Workers – New South Wales Branch (the NUW) from 8 June 2004 until his dismissal on 16 May 2016. His dismissal followed a finding by the NUW that he had engaged in serious misconduct, being the misappropriation of union funds through the misuse of his union issued credit card.

[2] Mr Belan is the brother of Mr Derrick Belan, who was the State Secretary of the NUW from around 2001, succeeding his late father, Frank Belan who held this position for many years prior 1. Mr Derrick Belan employed his brother Nick in the role of Organiser in 2004. The NUW’s bookkeeper until 2015, Ms Danielle O’Brien, is Nick and Derrick Belan’s niece.

[3] On 6 June 2016, Mr Belan made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by the NUW. He seeks reinstatement to his former position of Organiser.

[4] The application was the subject of conciliation on 29 June 2016 and remained unresolved. Prior to the application being listed for arbitration, there have been various proceedings to deal with matters such as the production of documents and the admissibility of evidence given by Mr Belan to the Royal Commission into Trade Union Governance and Corruption (TURC) 2. An application was also made for this application to be heard before a Full Bench of the Commission, which was refused3.

[5] The matter then came before me for arbitration on 8 and 14 March 2017. At the hearing, Ms P Lowson of Counsel, with Ms A Mataere, solicitor, appeared for Mr Belan. Mr J Nolan of Counsel, with Mr M Burns, solicitor, appeared for the NUW. Both parties were granted permission to be represented pursuant to s.596 of the Act.

[6] During the proceedings on 8 March 2017, the NUW applied for an indefinite adjournment pending the outcome of the criminal charges against Mr Derrick Belan. Those charges related to obtaining, with deception, a financial advantage from the NUW to the value of over $565,000. I refused the NUW’s application and my decision was appealed by the NUW. Vice President Hatcher refused to grant a stay application by the NUW in a decision given in transcript on 9 March 2017 4. The NUW subsequently withdrew the appeal, and a costs application was made by Mr Belan in relation to the appeal.

[7] The arbitration reconvened and concluded on 14 March 2017 and final written submissions were filed by the parties on 12 May 2017.

[8] Mr Belan and Mr Derrick Belan gave evidence in support of the application. Mr Martin Cartwright (Branch Secretary) gave evidence for the NUW. A statement of Mr Bruno Mendonca (Assistant Secretary) was also admitted into evidence but Mr Mendonca was not required for cross examination.

[9] For the reasons set out below, I find that there was a valid reason for Mr Belan’s dismissal, and his dismissal was not otherwise unfair. Accordingly, I will dismiss this application.

Background and events leading up to the dismissal of Mr Belan

[10] Mr Belan was employed in a full time capacity as an Organiser with the NUW from June 2004 until his dismissal in May 2016. He was also an elected official under the Rules of the NUW.

[11] As an Organiser, Mr Belan reported to his brother Mr Derrick Belan as Secretary of the NUW.

[12] Mr Belan was issued with an American Express card by the NUW in the name of ‘Nick Belan NUW NSW’. Mr Derrick Belan was responsible at that time for the issuing of credit cards to NUW officials.

[13] The NUW was managed by a Branch Committee of Management (BCOM). Mr Belan was not a member of BCOM.

[14] Mr Belan understood that the NUW credit cards were to be used for NUW purposes, for example entertaining members or putting petrol in a union provided car, parking fees when attending to NUW business and other similar matters of that nature 5.

[15] There was no written policy or procedure in existence, prior to Mr Belan’s dismissal, governing the use of NUW credit cards.

[16] In or around October 2015, Mr Derrick Belan resigned from his elected position and employment with the NUW. Mr Belan gave evidence that this was a result of Danielle O’Brien, their niece and the NUW’s bookkeeper, confessing to using the NUW credit cards of other NUW officials 6.

[17] After Mr Derrick Belan resigned, Mr Belan attended a doctor and was certified medically unfit to work from 26 October 2015. He remained medically unfit to work until the termination of his employment in May 2016. Mr Belan gave evidence that he was ‘not coping’ during this period because he was ‘very stressed and worried for my family members’ 7. He was also referred to a psychiatrist.

[18] Mr Belan appeared and gave evidence before the TURC on 5 November 2015. A copy of the transcript of Mr Belan’s evidence before the TURC was annexed to Mr Cartwright’s witness statement in these proceedings⁸

[19] The Final Report of the TURC 9 was submitted to the Governor General on 28 December 2015 and released to the public on 30 December 2015.

[20] Part 4, Chapter 4 of the Final Report of the TURC 10 deals with the NUW. As relevant to Mr Belan, I extract the following:

69. At least one of the payments on the union credit card in the name of Anthony O’Donnell, in the amount of $800, was for the benefit of her uncle, Nick Belan. Danielle O’Brien admitted to using this credit card to book a holiday house in the Daintree for Nick Belan. Both Danielle O’Brien and Nick Belan gave evidence that Nick Belan had repaid that amount by way of regular deductions from his wages. The credibility of that evidence is an open question. In that respect it is in the same position as a great deal of the evidence given by members of the Belan family.

…

Nick Belan

81. Nick Belan is an organiser for the NUW NSW. He was provided with a union American Express credit card.

82. During the public hearing Nick Belan was taken to a number of transactions on his credit card statement that were for apparently personal purposes.

83. Nick Belan’s evidence was that a number of charges to his union credit card at restaurants in and around Sydney were (or could have been) for union purposes. He said that those expenses were authorised in advance, usually by Derrick Belan, either in person or over the phone. In his evidence, however, he made the following points. He did not make a record of receiving the authorisation. He did not make it known to the union’s bookkeeper that he had received authorisation. It was not his usual practice to keep a list of the guests that he took to dinner.

84. There were transactions at restaurants and fast food outlets which he said he simply could not recall at all. He could not recall if other transactions were for union business or personal purposes.

85. Counsel assisting drew Nick Belan’s attention to a Jetstar Airways purchase in the amount of $255 on his union credit card. The details on the credit card statement indicated that the passenger was Emma Belan. Nick Belan said that Emma Belan was his daughter. He did not know why ‘[his] daughter is on a Jetstar Airways [charge] on [his] card’.

86. Various transactions recorded on Nick Belan’s union credit card were at department stores and supermarkets. He could not recall some of the purchases. But he agreed with counsel assisting that some of those transactions were likely to be in-store purchases and were likely to have been made by him. He was unable to say whether these purchases were personal or union related.

87. When questioned about charges on his credit card for ‘Rentaskip’ and ‘Rent a Bin’, Nick Belan admitted that he had, on more than one occasion, had a skip bin delivered to his home and paid for it using his union credit card. He said that the purchase was not authorised. But he said that he was paying it back in the sense that he had arranged a payment plan with Danielle O’Brien, by which a regular amount would come out of his wages.

88. Counsel assisting asked Nick Belan if the payment plan related only to the hire of skip bins. His answer was: ‘No, a couple of other things too.’

89. When taken to a payment of $933.28 paid to Ticketmaster Australasia on his union credit card, Nick Belan said that he paid it back straight away.

90. The NUW NSW’s financial records confirm that in financial years 2012 to 2015 regular amounts were deducted from Nick Belan’s wages. However, it is not clear whether these deductions were sufficient to cover the private expenditure incurred by Nick Belan, or by Danielle O’Brien on his behalf, using union credit cards.

91. Ultimately, when pressed, Nick Belan admitted that he had, on a few occasions, made personal purchases using his union credit card, for which he did not reimburse the NUW NSW.

92. Nick Belan submitted that it was not clear whether the regular deductions from his wages, as recorded in the 2012-2015 financial records of the NUW NSW, may remedy or even over-compensate for any private expenditure incurred by him on his union credit card. He also submitted that Danielle O’Brien clearly made personal purchases for her own benefit. These submissions do not overcome admission he made that he made a couple of purchases which have not been reimbursed. And the submissions assume that he was telling the truth sincerely and accurately about repayment through regular deductions from his wages.

93. Counsel assisting submitted that Nick Belan may have committed offences against ss 117, 156 and/or 192E of the Crimes Act 1900 (NSW) and ss 267 and 268 of the Industrial Relations Act 1996 (NSW). That submission is accepted. Counsel assisting submitted that it had not yet been possible to determine the extent of Nick Belan’s activities or the extent of any involvement in his activities others had. Counsel assisting submitted that the matter should be referred to the police for further investigation. That submission is accepted. Pursuant to s 6P of the Royal Commissions Act 1902 (Cth) and every other enabling power, this Report and all relevant materials have been referred to the New South Wales Commissioner of Police, the Director of Public Prosecutions of New South Wales and the Executive Director of New South Wales Industrial Relations so that consideration can be given to the institution of proceedings against Nick Belan in relation to possible offences against ss 117, 156 and/or 192E of the Crimes Act 1900 (NSW) and ss 267 and 268 of the Industrial Relations Act 1996 (NSW). Further, pursuant to s 6P of the Royal Commissions Act 1902 (Cth) and every other enabling power, this Report and all relevant materials have been referred to the General Manager of the Fair Work Commission so that consideration can be given to the General Manager commencing proceedings against Nick Belan for pecuniary penalty orders in relation to possible contraventions of ss 285, 286 and 287 of the Fair Work (Registered Organisations) Act 2009 (Cth).

(footnotes omitted)

[21] I also note here the following, contained within the Final Report of the TURC 11:

Finding that a contravention or breach of duty ‘may’ have occurred

131. When the Report discusses breaches of laws or professional standards, its findings are limited to conclusions that a person has engaged in conduct that may have been a breach of a relevant law, regulation or professional standard.

132. In this context the word ‘may’ is being used in a particular sense. It is not intended to suggest merely there was some vague possibility of breach. The word ‘may’ is used to convey the view that there is credible evidence before the Commission raising a probable presumption that a breach of law, regulation or professional standard has occurred.

(footnotes omitted)

[22] On 29 January 2016, Mr Martin Cartwright commenced in the role of NSW Branch Secretary of the NUW, having previously been the NUW’s acting NSW Branch Secretary from 4 December 2015, and prior to that a New South Wales Branch Organiser from 2006.

[23] On or around 13 February 2016, Mr Cartwright authorised the issuing of a show cause notice to Mr Belan (the Show Cause Notice) 12. The Show Cause Notice is in the following form:

‘Dear Nick Belan

Pursuant to Rule 28.3 of the Rules of the National Union of Workers New South Wales Branch registered pursuant to the Industrial Relations Act 1996 (the Union), you are summoned to Show Cause why you should not be removed from the office of organiser of the Union. The reasons for the Show Cause Notice is that I contend that you have misappropriated funds of the Union. The misappropriation also amounts to a substantial breach of the Rules of the Union and the (sic) gross misbehaviour. The misappropriation of funds includes the following payments made by the Union to you or members of your family:

FY	Month	Card	Description	Amount
1.	13-14	Jul-13	Amex	Woolworths online	443.38
2.	13-14	Jul-13	Amex	Woolworths online	546.21
3.	13-14	Jul-13	Amex	Woolworths online	(11.01)
4.	13-14	Sep-13	Amex	Woolworths online	352.83
5.	13-14	Sep-13	Amex	Woolworths online	(9.06)
6.	13-14	Sep-13	Amex	Woolworths online	287.06
7.	13-14	Sep-13	Amex	Woolworths online	112.71
8.	13-14	Oct-13	Amex	Woolworths online	332.20
9.	13-14	Oct-13	Amex	ANZ Stadium Big Grill	203.30
10.	13-14	Dec-13	Amex	Flowers and Gifts	150.00
11.	13-14	Dec-13	Amex	Woolworths online	239.15
12.	13-14	Jan-14	Amex	Woolworths online	389.23
13.	13-14	Jan-14	Amex	Woolworths online	(15.96)
14.	13-14	Jan-14	Amex	Apple Store Penrith	529.00
15.	13-14	Feb-14	Amex	Woolworths online	5487.17
16.	13-14	Feb-14	Amex	Woolworths online	222.33
17.	13-14	May-14	Amex	Woolworths online	200.87
18.	13-14	May-14	Amex	Woolworths online	(12.87)
19.	13-14	May-14	Amex	Woolworths online	230.45
20.	12-13	Sep-12	Amex	Myfun Pty Ltd	989.46
21.	12-13	Dec-12	Amex	Woolworths online	1,313.70
22.	12-13	Dec-12	Amex	Woolworths online	(157.01)
23.	12-13	Dec-12	Amex	Woolworths online	180.91
24.	12-13	Feb-13	Amex	Woolworths online	803.91
25.	12-13	Feb-13	Amex	Apple Store Penrith	269.01
26.	12-13	Mar-13	Amex	Woolworths online	431.72
27.	12-13	Mar-13	Amex	Woolworths online	(2.99)
28.	12-13	Mar-13	Amex	Woolworths online	165.56
29.	12-13	Mar-13	Amex	Woolworths online	(6.60)
30.	12-13	Apr-13	Amex	Roses Only	159.90
31.	12-13	May-13	Amex	Woolworths online	247.26
32.	12-13	May-13	Amex	Woolworths online	448.27
33.	12-13	May-13	Amex	Woolworths online	500.43
34.	12-13	May-13	Amex	Woolworths online	(17.49)
35.	12-13	May-13	Amex	Woolworths online	(21.20)
36.	12-13	Jun-13	Amex	Woolworths online	145.06
37.	13-14	Jun-14	Amex	Woolworths online	98.45
38.	14-15	Aug-14	Amex	Hoot Penrith	629.10
39.	14-15	Aug-14	Amex	Avis Rent A Car Cairns	178.38
40.	14-15	Sep-14	Amex	Woolworths online	564.67
41.	14-15	Sep-14	Amex	Woolworths online	(25.48)
42.	14-15	Jan-15	Amex	Paypal info	119.25
43.	14-15	Jan-15	Amex	Paypal Cleverbridge	39.95
44.	14-15	Jan-15	Amex	Dick Smith Penrith	119.00
45.	14-15	Feb-15	Amex	Woolworths Flower	94.00
46.	14-15	Feb-15	Amex	Paypal Spinnega	77.69
47.	14-15	Feb-15	Amex	Paypal AMIS1	21.45
48.	14-15	Mar-15	Amex	Costco	596.94
49.	14-15	Mar-15	Amex	Microsoft Store	119.00
50.	14-15	Mar-15	Amex	Paypal Aagb Aust	51.96
51.	11-12	Apr-12	Amex	Ticketek	84.95
52.	11-12	Apr-12	Amex	Foxtix	263.00
53.	11-12	Apr-12	Amex	Foxtix	52.00
54.	11-12	Apr-12	Amex	Royal Agricultural Society	274.00
55.	13-14	Mar-14	Amex	Woolworths online	196.29
56.	14-15	Nov-14	Amex	Coles Express Ropes Crossing	101.38
57.	14-15	Nov-14	Amex	Costco	906.97
58.	14-15	Nov-14	Amex	Rent a Bin Australia	478.46
59.	14-15	Nov-14	Amex	Rent a Bin Australia	272.99
60.	14-15	Nov-14	Amex	RMS	169.00
61.	14-15	Nov-14	Amex	K-Mart Penrith	145.50
62.	14-15	Nov-14	Amex	Coles Richmond	447.26
63.	14-15	Nov-14	Amex	McDonalds M4 East	54.15
64.	14-15	Nov-14	Amex	Woolworths Plumpton	121.84
65.	14-15	Nov-14	Amex	Windows ESD by Arvato	129.00
66.	14-15	Dec-14	Amex	Auto One St Marys	148.95
67.	14-15	Dec-14	Amex	ASI Trackr Device	164.30
68.	12-13	Jan-13	Amex	Woolworths online	520.79
69.	12-13	Jan-13	Amex	Woolworths online	(6.42)
70.	12-13	Jan-13	Amex	Woolworths online	233.55
71.	12-13	Jan-13	Amex	Woolworths online	(2.64)
72.	12-13	Jan-13	Amex	RMS	59.00
73.	12-13	Jan-13	Amex	Woolworths online	406.65
74.	13-14	Aug-13	Amex	Roses Only Milton	79.90
75.	13-14	Aug-13	Amex	Skip Bin Online	304.40
76.	13-14	Aug-13	Amex	Skip Bin Online	219.40
77.	13-14	Aug-13	Amex	Woolworths online	330.65
78.	13-14	Aug-13	Amex	GIO	761.93
79.	13-14	Nov-13	Amex	Woolworths online	300.48
80.	13-14	Nov-13	Amex	Woolworths online	(92.64)
81.	13-14	Nov-13	Amex	Woolworths online	384.46
82.	13-14	Nov-13	Amex	Woolworths online	(0.99)
83.	13-14	Nov-13	Amex	RMS	124.00

In accordance with Rule 28 the Committee of Management will meet at 2pm on 26 February at the Union’s premises at Granville to consider your removal.

You are summoned under rule 28(1) to attend the Committee of Management meeting to ‘Show Cause’ why you should not be removed from the office you hold in the Union. You may make submissions and provide evidence in respect of the above allegations. In view of the seriousness of the allegations and to protect the interests and reputation of the Union should you have any regard for the interests and reputation of the Union you will voluntarily cease to act in the office of organiser or on behalf of the Union until these matters are concluded.

This notice is issued in the knowledge that you are currently on sick and have been on such leave since September 2015.’

[24] On 26 February 2016, Mr Belan sent an email to Mr Cartwright¹³ (the 26 February reply). The 26 February reply said:

‘Dear Martin

SHOW CAUSE NOTICE

As you know I am currently on sick leave. My medical treatment is ongoing. I have given the NUW a Doctor’s certificate from my treating psychiatrist.

I received your letter by courier on 13 February 2016 summoning me to appear at a Show Cause meeting.

I do not believe I am currently well enough to attend a Show Cause meeting.

In your letter you say that I have misappropriated funds of the Union. You go further and suggest this is a substantial breach of the Rules of the Union and gross misbehaviour.

The letter also refers to payments made by the Union to me or members of my family. I am unaware of payments of this nature. This strikes me as an attack on me because of my family name.

I believe that the issue you raise of payments on the NUW American Express credit card with my name on it was covered during the Trade Union Royal Commission (TURC). At the time of the TURC hearings I provided assistance to the NUW, spoke with Andrew Joseph (barrister), Wayne Meaney (then State Secretary of the NUW) and other NUW officials.

The NUW had access to all the documents and finances of the NUW and agreed with me that many of the payments on my AMEX card did not look like they were mine. There were certain payments I did recall and I confirmed with the NUW that I notified them of these payments and had made re-payments.

I understand that the NUW made submissions to the TURC that whilst there may have been some personal expenses put on my NUW credit card, these were notified to the NUW, and regular deductions were made from my pay to re-pay any of these personal expenses. I believe the NUW submitted that I may have even over-compensated for any payments on my credit card.

During the TURC hearings my niece admitted to certain payments. I did not recall all the payments on my AMEX that were raised with me. I asked that the NUW clear up the issue and said I was happy to continue the regular deductions from my salary (these have been ongoing since about 2012).

You have provided me with a list of payments on my AMEX card. The detail you have provided is insufficient for me to be able to say whether these payments were ones I made or were made by someone else without my approval. I request that you provide me with a copy of the AMEX statements that you used to make up the table of payments. For me to assist you, I need to see all the details of the payments.

The NUW made submissions in my name to TURC that the commission was inquisitorial in nature and did not add any substance to existing evidence nor to the establishment of any offences against me.

The information about payments on my credit card is very confusing. I will say again that there were payments of a personal nature, I disclosed these to the NUW before TURC was even in existence, the payments were authorized, and I made re-payments. I have continually stated that I would help the NUW about payments on my card.

It seems totally unfair to raise with me payments on my credit card that you likely know others have admitted to. The NUW made submissions to TURC that were breakdowns in governance at NUW but you now raise a Show Cause Notice on me because of my family name.

You say that I have misappropriated funds but those at NUW (or representing the NUW) who looked at the evidence during TURC came to a very different conclusion. The NUW did not submit to TURC that I engaged in substantial breaches of the Rules or there was gross misbehaviour.

I request that you provide me with proper details of the payments from my NUW card, provide me with time to analyse them and once my health improves I can assist you in explaining payments. Then I will be able to show you that there was no misappropriation of funds (you may owe me money) and no gross misbehaviour.

I trust you will give me a fair opportunity to respond to the Show Cause Notice, although I think such a notice is not necessary for the reasons I have given in this letter. It is not appropriate for you to bring in the conduct of others when addressing my personal conduct.

Thank you

Nick Belan’

[25] During the hearing, Mr Belan gave evidence that he had this response drafted by the solicitor who acted for Mr Derrick Belan in the TURC hearings 14.

[26] The NUW’s lawyers wrote to Mr Belan on 3 March 2016 (the 3 March letter), agreeing to an adjournment of the show cause hearing for a period of three weeks until 24 March 2016. The 3 March letter 15 also enclosed American Express credit card receipts in respect of each of the purchases that were obtained by use of Mr Belan’s NUW credit card as set out in the Show Cause Notice. The letter went on from paragraph 6 to say:

‘Furthermore in light of the admissions that you have made regarding the use of the Union Credit Card to purchase personal items and the arrangement that you entered into for repayment (see for example Jetstar Airways $255; ‘Rentaskip’, ‘Rent-a-Bin’ $340.40, $219.40, $478.46, $272.99; Ticketmaster $933.28 see invoice enclosed; various in store and online department stores and supermarket purchases as set out in the attached invoices) why is it not open to the Committee of Management to make an adverse finding against you and act upon that finding?

It is noted when pressed during your evidence before the Royal Commission you admitted that on a few occasions you made Personal purchases using your credit card for which you did not reimburse the NUW NSW.

Although you entered into a repayment plan to reimburse the unauthorised use of the Union’s Credit Card this does not negate the fact that offences were committed and a serious breach of trust occurred.

We enclose relevant extract from the Royal Commission in this regard.

We wish to make it clear that the Secretary intends to rely on all transactions set out in the Notice to Show Cause (both admitted and not admitted) when the matter is heard by the Committee of Management on 24^th March 2016. He will also rely on the admissions made by you before the Royal Commission and the Credit Card receipts.’

[27] The ‘relevant extract from the Royal Commission’ referred to in the 3 March letter was paragraphs 54 to 64 of the submissions of Counsel Assisting the Royal Commission, which related to Mr Belan.

[28] On 23 March 2016, the day prior to the rescheduled show cause hearing, Mr Belan submitted a further medical certificate to the NUW certifying that he was suffering from anxiety and depression which would be exacerbated if he went to ‘court’. He also provided a WorkCover certificate stating he was suffering from a ‘major depressive disorder’ and had ‘been subjected to intimidation at work through the questioning of his loyalty to his employer’.

[29] The Show Cause hearing was further adjourned as a result of the medical certificates.

[30] On 29 April 2016 Mr Cartwright wrote again to Mr Belan regarding the Show Cause Notice (the 29 April letter). The 29 April letter¹⁶ commenced by summarising the events that had transpired from the time the Show Cause Notice was issued, and noted that in the view of the NUW, it had adjourned the hearing of the charges against Mr Belan only because of the overall interests of procedural fairness. The letter from paragraph 7 onwards is extracted below:

‘However, I wish to make it abundantly clear that there is a broader public interest involved in this matter. It follows that there is a limit as to how long the matter can continue without going to a Hearing.

Taking into account all of the circumstances (the Notice to Show Cause, the adjournments, the medical certificates and certificate of capacity, the provision of particulars, the overall interests of the union and the admissions made by you before the Royal Commission regarding your misuse of your Union Credit Card) I propose that if you are unable to attend the hearing in person that the Committee of Management deal with this matter on the papers.

I therefore invite you to provide me with your written submissions and any evidence that you wish to rely upon by the 6^th of May 2016.

The Committee of Management will consider such submissions and evidence when they next meet to deal with the matter on 10^th of May 2016.

In your letter to me dated 26 February 2016 you set out your position in respect of the charges.

In the event that you do not provide any further material to me prior to the next Hearing, I propose to bring the matters raised by you in your letter to the attention of the Committee of Management. I will invite the Committee to treat your letter of 26 February as a submission and to take these matters into consideration in determining whether the charges set out in the Notice to Show Cause have been established.’

[31] Mr Belan did not reply to this correspondence, nor did he attend the BCOM meeting.

[32] On 16 May 2016, Mr Cartwright, on behalf of the NUW, sent a letter to Mr Belan removing him from his elected position and terminating his employment (the Termination Letter)¹⁷. The Termination Letter is in the following terms:

‘Dear Mr Belan,

As you are aware, a Branch Committee of Management (BCOM) meeting was held on Tuesday 10th May 2016 to determine the outcome of your Show Cause matter that has been ongoing for some time. We provided you the opportunity to again respond to the allegations, this time in writing but we have received no response.

The members of the Committee of Management in reaching a decision took into account the explanations that you provided in respect of your use of the credit card as set out in your letter to me dated 26 February 2016.

At the meeting the BCOM has overwhelmingly determined that it was satisfied that the breach of union rules for the misappropriation of union funds made against you has been substantiated. As a result, the BCOM has removed you from office in your position within the NSW Branch of the State Union and as a branch of the Federal Union.

Your contract of employment with the union has also been terminated on the grounds of serious misconduct, that being misappropriating the funds of the union by misuse of the union credit card.

We request that you make arrangements for the return of all union property, including the vehicle, IT equipment, fuel card and your State and Federal Right of entry permits.

Your owed statutory entitlements will be forwarded into your nominated account to be processed on Monday 23rd May 2016.

This has been a difficult time for all concerned and I wish you all the best in your future endeavours.

[33] For clarity, the application before me is an application for an unfair dismissal remedy. I am not concerned with compliance with the NUW’s rules in respect of Mr Belan’s removal from his elected position of Organiser.’

The evidence on behalf of Mr Belan

[34] Mr Belan and Mr Derrick Belan gave evidence in the proceedings.

Mr Belan

[35] Mr Belan’s evidence confirmed his employment with the NUW as an Organiser, including that it was his brother Mr Derrick Belan, in his capacity as State Secretary, who had offered him the position.

[36] Mr Belan said that he received on-the-job training for the role of Organiser by Mr Mendonca. Apart from this, he said, he did not undertake or complete any other induction process or training on commencement with the NUW, other than right of entry matters.

[37] Mr Belan gave evidence that his role as an Organiser involved recruiting members for the NUW, and visiting sites that were already unionised to talk with members and ensure their interests were protected.

[38] Mr Belan said that the NUW was run by BCOM, and as an Organiser he was not a member of BCOM and did not attend BCOM meetings.

[39] In relation to union credit cards, Mr Belan gave evidence that he was issued with a NUW American Express credit card in the name of ‘Nick Belan NUW NSW’ in around August 2004. As set out earlier, he said he understood that the NUW credit card was to be used for NUW purposes, and that at the time he was issued with his card, there was no written policy or procedure in place in relation to use of the card.

[40] Mr Belan gave evidence that it was ‘a custom and practice that the NUW credit card could be used for personal expenditure in the following circumstances:

a. The employee requested Derrick Belan to authorise personal expenditure before making the purchase.

b. In later years employees could provide details of the purchase, including the cost, to the NUW bookkeeper. Since approximately 2007, this position was held by my niece, Danielle O’Brien.

c. The bookkeeper would retain records of the personal expenditure and would arrange repayment of the personal expenditure by making deductions from salary.’ 18

[41] Mr Belan said that throughout the time he held a NUW credit card he did not receive, or ever see, the statement for the credit card issued in his name. He said that to the best of his knowledge and belief, Ms O’Brien would collate all of the credit card statements for each employee/officer and provide the statements to the monthly BCOM meeting, and BCOM would authorise the payment of each credit card statement. Mr Belan said that at no time was he informed that his credit card statement had not been authorised for payment by BCOM.

[42] Mr Belan gave evidence that on or around 16 October 2015, Mr Derrick Belan telephoned him and said words to the effect of:

‘Danielle confessed to using other people’s fucking credit cards. I’ve sacked her.’ 19

[43] Mr Belan gave evidence that on around 23 October 2015, Mr Derrick Belan resigned from his position and employment with the NUW, saying to him words to the effect of:

‘Danielle’s put me in a bad position, my position is compromised with she’s done (sic). I put her in there so I can’t stay.’ 20

[44] Mr Belan said he was very distressed for his family members and concerned for their well-being and the future of the NUW. Mr Belan then went to the doctor and was certified medically unfit from 26 October 2015 to 15 November 2015, and remained medically unfit until the termination of his employment. He said he also started seeing a psychiatrist from late October 2015 and he was prescribed medication to assist him ‘cope with the situation’. 21

[45] Mr Belan gave evidence that he received a call from Mr Mendonca on or around 21 December 2015. He said that Mr Mendonca at that time held the position of Assistant Branch Secretary (although Mr Mendoca said he was not made Branch Secretary until January 2016). A discussion was had, in which Mr Mendonca allegedly said words to the effect that ‘the union wants you to resign otherwise they are going to issue a show cause … You’re better off resigning. If you don’t the BCOM are going to neck you’.²²

[46] Mr Belan’s witness statement stated that he received the Show Cause Notice on 15 February 2016 23 but was not provided with any supporting documentation.

[47] As he was certified medically unfit to work at this time, he did not attend the BCOM meeting on 26 February 2016, and BCOM did not consider the Show Cause Notice at this meeting. Mr Belan said that it was the BCOM meeting on 10 May 2016 that ‘purported to remove me as an organiser’ 24 and by letter dated 16 May 2016 his employment was terminated.

[48] Mr Belan said the Termination Letter did not identify which funds he had been found to have misappropriated, and he did not misappropriate union funds.

[49] Mr Belan’s evidence also outlined his personal circumstances, being one of serious financial hardship. He said that he left school at the age of 16 and had no qualifications or trade certifications. He further said that he was a single parent who had responsibility for his seven children, three of whom were still living at home, and one of these children had learning and mild intellectual disabilities.

[50] Mr Belan’s second statement²⁵ stated that it was only having read the statement of Mr Cartwright in these proceedings that he learned that the NUW claimed to have terminated him for misappropriation of funds, specifically relating to a Jetstar ticket that had been purchased for his daughter Emma, two skip bins purchased and repaid under a payment plan arranged with Danielle O’Brien, and purchase of concert tickets which had been approved by his brother Derrick.

[51] Mr Belan’s evidence was that the reason he would ask to use the NUW credit card as opposed to his own was because his own credit card was ‘maxed out’. He said that whenever Mr Derrick Belan approved the use of the NUW credit card, he would have either given cash directly to Danielle O’Brien or make repayments from his salary.

[52] Mr Belan gave evidence that in or around 2012 he started regular deductions from his salary for the purposes of repaying personal purchases on the NUW credit card. He said that these repayments were recorded on his payslips as ‘Birthday Repayment’. He did not know why they were recorded in this manner, however, ‘there was a system in place for milestone birthdays where all staff would contribute to buy a present’.²⁶

[53] Mr Belan annexed his payslips from 13 May 2013 to 14 September 2015 which he said demonstrated that he had paid to the NUW at least $2,232.36 under the title ‘Birthday Repayments’.²⁷

[54] Mr Belan asserted that on his calculation, he had repaid $514.90 more than he spent on personal purchases between 2012 and 2015. He said he relied on and trusted Danielle O’Brien to deduct only sufficient amounts to cover his personal expenditure on the NUW credit card. However, he did not check his payslips and was unaware that he had repaid so much more money than he had actually spent on the NUW credit card.²⁸

[55] In cross examination, Mr Belan was asked whether he considered he had taken any personal responsibility in seeing that the monies spent on his NUW credit card were properly accounted for. His answer was ‘no, not really.’ 29

[56] In relation to his evidence before the TURC, Mr Belan said that he was subpoenaed as a witness, and was very distressed for his family members and concerned for their well-being and the future of the NUW.

[57] He gave evidence that he went to his local doctor in October 2015 and was referred to a psychiatrist. He was certified medically unfit from 26 October 2015 until his dismissal in May 2016.

[58] Mr Belan said that in or around late October 2015, his psychiatrist recommended he be hospitalised as she believed he was not fit to face the TURC. However, he did not want to be hospitalised as he was the sole carer for his school-aged children and did not have the money to pay for hospitalisation in a private facility. He was prescribed drugs to help him cope with the situation, and was diagnosed with an adjustment disorder, depression and anxiety.³⁰

[59] Mr Belan said that he gave evidence to the TURC on 5 November 2015, even though his doctor had advised against it. He said his doctor had written a letter to the TURC asking that they have consideration for his condition and outlining that in her professional opinion he was not capable of giving evidence at that time.³¹ A copy of the doctor’s letter was not able to be produced in this hearing.

[60] In Mr Belan’s second statement, he sought to correct parts of his evidence given before the TURC. Specifically, he said that:

a. On pages 131 – 132 [of the TURC transcript] in relation to the skip bin, I discussed hiring it and said that it was not authorised but that is incorrect as I had pre-approval to hire it, from Derrick Belan.

b. On pages 146 [of the TURC transcript], I was asked a series of questions and said that I made ‘one or two’ personal purchases that were not reimbursed, which is wrong. I reimbursed the NUW for all purchases that were not union related’.³²

[61] In cross examination, he agreed that this was not something he had said in his evidence before the TURC. He further agreed with the proposition that he gave his answers to questions put to him in the TURC conscientiously, and while he ‘should’ve thought about them better’, he did not lie. 33

[62] Mr Belan asserted that he had been dismissed because of ‘family members’. He said that prior to his termination, he was consistently pressured to resign by the NUW. He said that he did ‘nothing wrong’, which the NUW knew, and the NUW ‘even told TURC that I had done nothing wrong, they recognised my payment plan and that I may have even overpaid the NUW, I now know that I have overpaid’.³⁴

[63] Mr Belan said that having received the Show Cause Notice, a friend who is a solicitor offered to, and did, draft a letter in reply to Mr Cartwright.

[64] In response to the 3 March letter, Mr Belan gave evidence that he did not attend the Show Cause hearing given he was certified medically unfit to work.

[65] In or around March 2016, Mr Belan’s doctor completed a WorkCover medical certificate indicating that his illness was caused by work. Mr Belan said that he received a letter from Mr Cartwright dated 18 April 2016 advising that his workers compensation was rejected.

[66] Mr Belan said that after receiving the 29 April letter, he did not attend the Show Cause hearing or provide any further response because he was certified medically unfit to work, and ‘[i]t seemed to me that the NUW had made up their mind to terminate me because of what my family members did, and I could not find the mental energy to try and fight the issue if they were going to terminate me anyway. In particular, I knew that the NUW was aware of my evidence to TURC and had previously accepted it’.³⁵

[67] In Mr Belan’s second statement, he again asserted that he did not misappropriate funds from the NUW. He confirmed that he did on occasion, and with approval, use his NUW credit card for personal expenses, and that all personal expenses were repaid to the NUW through his payment plan.

[68] In cross examination, Mr Belan was asked about a number of transactions on his NUW credit card statements, the majority of which he said he was unsure about, did not recognise, or could not recall. 36

[69] Having reviewed the credit card statements of other NUW officials produced to the TURC and the Commission (who were not dismissed), Mr Belan highlighted a number of purchases on those cards which he said did not appear to be union related.³⁷

[70] Mr Belan’s second statement also set out in more detail his financial position as a result of his dismissal, which I have taken into account.

Derrick Belan

[71] Mr Derrick Belan gave evidence on behalf of his brother.

[72] His evidence went to the process by which NUW issued credit cards could be used for personal expenditure.

[73] Mr Derrick Belan’s statement 38 stated that credit cards were to be used for Union purposes, and with his approval or the approval of Wayne Meaney,‘the credit card could be used for personal items where the employee was in financial need’³⁹. He said that the process was that the NUW official would contact him or Mr Meaney to obtain approval to use the card prior to placing any personal items on the card.

[74] Mr Derrick Belan said that as State Secretary, he could approve expenditure of up to $1,000 without approval from BCOM. All credit card statements would then be attached to the agenda for BCOM meetings.

[75] Mr Derrick Belan outlined two occasions where he approved the use of the Union credit card for purchases for Mr Belan’s personal benefit. One related to the purchase of concert tickets and the other related to the purchase of skip bins in 2013 and again in 2014.

[76] Mr Derrick Belan also asserted that he had been asked to approve personal items on the union credit card for a number of other officials of the NUW.

[77] Mr Derrick Belan was unwilling to answer a number of questions in cross examination. I indicated that while I could not draw any adverse inference from him claiming privilege against self-incrimination, I would put limited weight on his evidence if he was not in a position to answer questions and the NUW were not, as a result, able to fully test his evidence. 40

Other evidence relied upon by Mr Belan

[78] There were various other documents which were exhibits in the proceedings, and which I have taken account of, even if not specifically mentioned in this decision.

[79] A medical report from Dr Shail Chaturvedi, Consultant Psychiatrist, dated 23 January 2017 (the medical report) was tendered on behalf of Mr Belan in the proceedings 41. The medical report, from paragraph 2, is in the following terms:

‘Mr Belan was referred to see me on 28 October 2015. Since then I have seen him almost once a month.

In my opinion Mr Belan was suffering from Adjustment Disorder with Depressed and Anxious Mood as a result of the investigation for criminal charges of fraud.

Mr Belan became anxious and depressed with preoccupation of worthlessness. He suffered from insomnia and loss of appetite. His symptoms commenced at least 3 months before he 1^st consulted me.

On 3^rd of November, 2015 Mr Belan was suffering from anxiety and depression which would have affected all of his actions. Giving evidence in a court is an extremely unnerving experience especially for a person who was labouring under active and acute psychiatric symptoms. I gave him a certificate as he was unable to travel or communicate logically and effectively due to overwhelming anxiety. He may not have been able to comprehend questions and formulate appropriate responses. Due to extreme anxiety he could have suffered from panic attacks mimicking heart attack.

I therefore believed that his evidence under the extreme stress he was experiencing would not have been a valid response.

Mr Belan failed to respond to the Unions letters of March and April 2016. It is my view that both his anxiety and his extreme fear of the inevitable consequences have caused him to ignore the letters.

Mr Belan was aware of the nature of his serious charges and felt emotionally paralysed in dealing with any matter relating to his work.

I hope this report will satisfy your enquiry in preparing Mr Belan’s case.

Thank you once again for the opportunity to express my views.’

[80] Counsel for Mr Belan also relied on the submissions made by the NUW to the TURC which were annexed to Mr Cartwright’s statement 42, an extract of which is as follows:

‘There is no doubt Ms Danielle O’Brien had access to Mr Belan’s union credit card and had on numerous occasions made purchases on that said card. These purchases were clearly personal purchases made by Ms O’Brien on her own accord and for her benefit alone.

Given Ms O’Brien’s admission, and that the Counsel Assisting did not extensively put to Ms O’Brien the purchases from Mr Belan’s union credit card, it would be speculative to even suggest that Mr Belan, himself, had made inappropriate purchases that he did not admit to or recall as having made. This would make any future criminal prosecution problematic. This includes the Jetstar flight in the name of Emma Belan.

Whilst Mr Belan did give evidence as to having made a ‘couple’ of purchases using the union credit card that ‘have not been reimbursed’, it is the case that a fortnightly deduction was made from his wages to reimburse the union for any personal purchases made on his union card.

It is submitted that given the state of evidence as is, it is entirely possible that the reimbursements made by Mr Belan could have accounted for the ‘couple’ of purchases that he did not believe he had reimbursed.

It is of significance that neither Mr Nick Belan nor Ms Danielle O’Brien were queried as to the possibility that Mr Belan’s wage deductions may overcompensate for the amount that is required of him to reimburse the union.’ 43

[81] I have considered all of the evidence submitted by Mr Belan in coming to my decision, even if not specifically referred to herein.

The evidence on behalf of the NUW

Martin Cartwright

[82] Mr Cartwright was the Branch Secretary of the NUW at the time of the hearing of this application, having held that position from 29 January 2016. His background with the NUW was set out earlier in this decision. He was also a lead organiser with Unions NSW for two years, and an organiser with the Australian Manufacturing Workers Union from 1998 to 2005.

[83] Mr Cartwright gave evidence that his appointment as Branch Secretary followed the resignations of the previous two Branch Secretaries, at a time when members and the previous NUW leadership were called before the TURC. Mr Derrick Belan resigned as Branch Secretary on or around 23 October 2015, and Mr Wayne Meaney was then appointed Branch Secretary until his resignation a few months later, effective 29 January 2016.

[84] Mr Cartwright said that following his appointment, he formed the view that the evidence and findings of the TURC regarding Mr Belan’s misuse of his union credit card warranted that Mr Belan be summoned to show cause why he should not be removed as an officer of the NUW for misappropriation of NUW funds.

[85] Mr Cartwright dealt with the evidence given by Mr Belan in the TURC and the submissions made by the NUW to the TURC. Mr Cartwright noted that the NUW’s TURC submissions were prepared by the NUW’s previous legal representatives under instructions from the NUW’s previous administration. Mr Cartwright stated that ‘[a]s a consequence of the evidence exposed by the TURC and its subsequent findings in relation to the conduct of former NUW officials, it has been necessary for the NUW to appoint a new governing administration and retain new legal representation to provide a clean slate for the NUW to move forward.’ 44

[86] Mr Cartwright highlighted the findings of the TURC, and in particular paragraphs 91 and 93 of the TURC Final Report (see paragraph 20 above), which he said were very significant to him as the incumbent NUW Secretary. He gave evidence that these were not findings he could ignore.

[87] Mr Cartwright outlined the process undertaken by the NUW, commencing from the issuing of the Show Cause Notice to the termination of Mr Belan’s employment. The process is set out earlier and is not repeated here.

[88] Mr Cartwright gave evidence that the statement of Mr Belan to the effect that the NUW credit cards were to be used for NUW purposes such as entertaining members, petrol for the union car, parking when attending NUW business etc, reflected his own understanding of what NUW credit cards were to be used for.

[89] He said he was unfamiliar with the arrangement that Mr Belan said he had, that being that the NUW card could be used for personal expenditure where such expenditure was authorised by Mr Derrick Belan and where the bookkeeper would arrange repayment of the personal expenditure by making deductions from the employee’s salary.

[90] Mr Cartwright said that it was only as a consequence of hearing the evidence from the TURC that he became aware that some NUW officials had been making unauthorised purchases on the union credit card.

[91] Mr Cartwright’s statement set out an extract of the evidence given by Mr Belan under oath before the TURC, as recorded in the transcript. The extract which is set out below contains what was referred to as the ‘admission(s)’ made by Mr Belan:

Q. Did you sometimes, sitting there today --

A. Yes.

Q. -- under oath or affirmation--

A. Yes.

Q. -- make personal purchases union using your Union credit card that you did not reimburse the Union for?

A. I’d say one or two, yes. A couple, yes.

Q. Why did you do that?

A. I have no - no reason for doing that.

Q. Are you able to identify which ones or can you recall which ones?

A. No.

Q. Was it more than a couple?

A. I would say it wouldn’t be too many, yes.

Q. It wouldn’t be too many?

A. No. It might be a couple, so a few may be. I couldn’t--

Q. A few?

A. At best.

Q. So more than 10, less than 10?

A. I would say no more than 10, no.

Q. It could be as many as 10?

A. No, I would say - I’d have said up to a few at best. 45

[92] Mr Cartwright expressed that it was his firm belief that in light of the revelations made by the TURC, the dismissal of Mr Belan was appropriate in the circumstances and any other course would have left the NUW, and himself, exposed to criticism that it had not acted in the interests of its members.

[93] In cross examination, Mr Cartwright did not resile from the majority of his evidence. He did concede that the schedule of transactions provided to Mr Belan with the 3 March letter were provided as a matter of procedural fairness, rather than positively alleging that Mr Belan had wrongly appropriated funds in respect of all of those transactions. He also agreed in cross examination that Mr Belan had not made admissions to the purchase of the Jetstar Airways ticket for his daughter Emma, and had not admitted to the use of the credit card for four skip bin debits as alleged by the NUW.

[94] In cross examination it was also put to Mr Cartwright that the only clear evidence before the NUW at the time of Mr Belan’s dismissal was the admissions to the TURC 46.

Bruno Mendonca

[95] The NUW filed a statement of Mr Bruno Mendonca 47. He was not required for cross examination, on the proviso that there was no Browne v Dunn48 inference drawn in relation to telephone calls dealt with in Mr Belan’s evidence that he had received from Mr Mendonca. This was agreed by counsel for the NUW.

[96] Mr Mendonca’s evidence was that he had been employed by the NUW since commencing as an Organiser in mid-2003. He remained an Organiser until 29 January 2016 when he was appointed Assistant Secretary of the NUW NSW Branch. He commenced at the NUW about one year prior to Mr Belan and they worked closely together for about three years. Mr Mendonca considered that he and Mr Belan were good friends and spoke to each other regularly.

[97] Mr Mendonca had an NUW credit card. He gave evidence that when he was first issued with the NUW credit card, Danielle O’Brien told him that the credit card was only to be used for parking and fuel. Later, he was able to use the credit card for work related flights and accommodation as well.

[98] His evidence was that he never used the NUW credit card for personal use, and was not aware that there was any arrangement where he could have done so.

[99] Mr Mendonca said that until the TURC, he was not aware that anyone in the NUW was using the NUW credit card for their personal expenditure. Further he was not aware of the ‘custom and practice’ that Mr Belan described in his evidence. He said that if such a custom and practice did exist, then it only existed for a select group of people which did not include him.

[100] Further, he said that if such a practice were generally available, he would have known about it.

Submissions on behalf of Mr Belan

[101] Counsel for Mr Belan made extensive submissions which I have considered and which include the submissions set out below.

[102] Mr Belan denied misappropriating Union funds.

[103] He had explained the process by which he could use the NUW issued credit card with pre-approval by the Secretary (Mr Derrick Belan), and the method by which he would repay the purchase amount to the Union (with Ms Danielle O’Brien).

[104] To the extent that Mr Belan ‘admitted in TURC to using the union credit card for non-union related purposes, he did so in the context of his evidence as to the procedure that was to be followed for those purchases’.⁴⁹

[105] Mr Belan had either paid in full, or entered into repayment arrangements with the NUW, for the purchases made at the time they were made.

[106] Although the NUW relied entirely on Mr Belan’s admissions to the TURC to make the findings of serious misconduct on which the decision to dismiss him was based, it was apparent that Mr Belan made no admission that he misappropriated union funds.

[107] The NUW did not have a valid reason for the dismissal as contemplated by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (Selvachandran) 50.

[108] The alleged misappropriation was particularised in the 3 March letter and adverse findings were only made by the BCOM in respect of those identified purchases set out in that letter, as opposed to all of the transactions set out in the Show Cause Notice.

[109] Extensive submissions were made by counsel for Mr Belan regarding his alleged misappropriation of union funds and the asserted difficulties with the NUW’s case in this regard. These submissions also dealt in detail with the meaning of the term ‘misappropriation’, which I have considered.

[110] The NUW did not undertake any investigation of its own regarding the alleged misconduct of Mr Belan.

[111] The credit card statements of Mr Belan did not evidence misappropriation of funds by him – only that his card was used to make certain purchases.

[112] The NUW had not adduced any other evidence to support a finding that Mr Belan misappropriated union funds or engaged in any conduct for which he could be dismissed.

[113] Mr Belan had relied on his niece and the union’s’ bookkeeper, Danielle O’Brien, to make the necessary deductions from his salary to repay personal expenditure on the union credit card. However, after her evidence in the TURC it became apparent that his reliance on and trust in Ms O’Brien was misplaced.

[114] Ms O’Brien’s evidence to the TURC ‘strongly suggested the perpetration of a complex and premeditated fraud over a period of several years …’.⁵¹

[115] Ms O’Brien had ‘inaccurately’ described the deductions from Mr Belan’s salary as ‘Birthday Repayment’ and she had not ceased those deductions once the personal expenditure has been repaid. She may have siphoned off those repayments so that they were not made to the Union, having regard to the evidence of Mr Cartwright and the police facts sheet tendered by the NUW (Exhibit R1).⁵² There was no suggestion that Mr Belan was aware of any of these matters.⁵³

[116] There was no dispute that Mr Belan received authorisation from his brother Derrick as Secretary in relation to the admitted purchases.⁵⁴

[117] The NUW was on notice from the time of Ms O’Brien’s evidence to the TURC that she had admitted using Mr Belan’s credit card without authority, and therefore there was a plausible alternate explanation for the purchases on his union issued credit card.

[118] The NUW’s case against Mr Belan was wholly reliant on him having made admissions to the TURC that he had misappropriated amounts identified in the letter from the NUW’s lawyers dated 3 March letter. However, it was submitted that Mr Belan’s evidence before the TURC made no admission or denied all but one of the purchases set out in the 3 March letter. Mr Belan only admitted the Ticketmaster purchase to the extent that his card was used for the purchase, but not that he had misappropriated funds.

[119] As a result, it was submitted that the NUW’s reliance on the admission was misplaced and did not support any finding of misconduct.

[120] In respect of the procedural fairness aspects of the dismissal, it was submitted that Mr Belan was on sick leave with a psychological illness throughout the relevant period, and was unfit to deal with serious allegations of misconduct. The NUW would have been aware that the show cause process was stressful to Mr Belan. However, it ignored this advice from his treating psychiatrist. Further, his evidence before the TURC was impaired by reason of his medical condition at that time.

[121] Mr Belan was not provided with particulars of the asserted misappropriations until the 3 March letter, some three weeks after the issuing of the Show Cause Notice, and the letter alleged misappropriations on the basis of admissions made by Mr Belan. However, Mr Belan was not provided with a copy of the TURC transcript in this regard. Instead, he was provided with an extract of the submissions of Counsel Assisting that were said to be inaccurate in material respects.

[122] The NUW’s counsel had represented Mr Belan in the TURC proceedings and made submissions on his behalf. These submissions included that not only did Mr Belan not owe money to the NUW, but he may have overpaid the NUW because of the repayment arrangements that were in place. The NUW had since resiled from those submissions, but not on the basis of any new evidence regarding Mr Belan’s conduct.

[123] Mr Belan asserted that the NUW owed him money due to the failings of Ms O’Brien to properly maintain the accounts.

[124] An admission that there may have been purchases that had not been reimbursed did not of itself constitute misappropriation, particularly in a context where there had been an ongoing debit for repayments.

[125] Mr Cartwright, in cross examination, noted a concern about the perception of the NUW, or ‘broader public interest’, if it did not take action given what came out of the TURC. Counsel submitted that Mr Cartwright was motivated by this perception in deciding to dismiss Mr Belan, rather than any concrete evidence against Mr Belan.

[126] In opening submissions regarding the admission made by Mr Belan in the TURC, Counsel for Mr Belan said:

… we put it this way: that admission was always insufficient to found his dismissal, but that’s in effect what was relied upon. That admission has to be read in the entire context of his evidence. That admission was a general admission. As I say, the question was improperly put because up to that point in time, Mr Belan had not made any admission of that sort and it should not have been put and it’s what happens, frankly, in Royal Commissions of this sort where counsel assisting has a free rein to ask questions, in effect. 55

[127] In relation to the medical report from Mr Belan’s psychiatrist, Counsel submitted that this was relevant to explain Mr Belan’s state of mind at the time he made the admission, and also to deal with Mr Belan’s non-engagement with the correspondence to him from the NUW from the time the Show Cause Notice was issued.

[128] Detailed submissions in reply were also filed on behalf of Mr Belan, which I have taken into account.

[129] In reply, it was submitted that none of Mr Belan’s evidence could be construed as an acknowledgement by Mr Belan that the NUW would rely on his TURC evidence (ie, the admission) that he had admitted misappropriating union funds.

[130] Further, Mr Belan’s evidence before the TURC was limited by its context, that being his evidence was constrained by the questions he was asked, the stress he was under, and the shock of the evidence the day before given by his niece, Ms O’Brien. Counsel submitted that:

‘It would be more appropriate to characterise the union’s reliance on the TURC evidence as an ‘extraordinary feature of this case’, not only because the respondent supported the applicant 100% in the TURC, but also because evidence produced in the hothouse of a Royal Commission, where the cross examiner is relatively unconstrained and where objections to questions are generally futile, is less likely to be reliable than evidence given in the measured context of court or tribunal proceedings, with parties equally represented and appropriate protections in place.’ 56

[131] Counsel for Mr Belan further characterised the admission in the following way:

The admission (at p.146 of MC-02) [Exhibit R2] is not an admission as to misappropriation of union funds; at most it is a vague and uncertain admission regarding unauthorised personal use of the credit card that is contrary to other evidence given by the applicant elsewhere in the TURC transcript. It does not support any reason for termination, let alone a finding of misappropriation of union funds. 57

[132] Further, Counsel submitted the findings of the TURC were ‘based on nothing more than the “admissions” at p.146 of MC-02 [Exhibit R2] and so add nothing to support the validity of the applicant’s termination – which was plainly invalid’. 58

[133] It was also submitted that the attack by the NUW on the credibility of Mr Derrick Belan was misplaced. 59

Submissions on behalf of the NUW

[134] The NUW submissions highlighted that in his evidence to the TURC, Mr Belan admitted under oath that he had made purchases using his union credit card for which she did not reimburse the NUW.

[135] The NUW submitted that the admissions made by Mr Belan to the TURC were sufficient, in and of themselves, to provide a valid reason for his dismissal. It argued that the BCOM was entirely justified in taking that sworn evidence, and the gravity of that evidence in the context of the TURC (and its findings) as providing an ample basis for its decision to dismiss him.

[136] In its written submissions, the NUW contended that the dismissal of Mr Belan was not just appropriate - in light of the revelations made by the TURC, any other course would have left the union exposed to justified criticism that it had failed to act in the interests of its members. It submitted that:

‘The picture which emerged of the operations of the NUW was shocking. It was one which revealed gross criminality. There were no financial controls and the systems were open to gross abuse - which occurred. Since the Report, and a subsequent police investigation, two of the main actors involved in the misconduct revealed in the Report, Mr Derrick Belan and Ms Danielle O’Brien have been charged by the NSW police.’

[137] The NUW submitted the Show Cause Notice alleged Mr Belan had misappropriated funds from the union and breached the Rules of the union, and he was therefore summonsed under the rules to a meeting to show cause why he should not be removed from the office of Organiser. The summons included detailed particulars of the charges and included a list of some 83 transactions made on Mr Belan’s NUW credit card which constituted the grounds upon which it was alleged that Mr Belan had misappropriated NUW funds.

[138] The NUW submitted that Mr Belan was provided with the opportunity to make submissions and provide evidence at the show cause hearing in respect to the allegation set out in the notice.

[139] Mr Belan wrote to Mr Cartwright on 26 February 2016 and requested an adjournment of the show cause hearing on the grounds that he was on sick leave. In this letter Mr Belan set out his position in relation to the allegations. The NUW submitted this letter made it abundantly clear that Mr Belan knew what he was facing, and despite claims to being incapacitated at the time, he was sufficiently alert to cause a detailed letter to be drafted by a solicitor and sent to the NUW.

[140] The show cause hearing was subsequently adjourned until 24 March 2016. Upon receipt of medical certificates on 23 March 2016, the show cause meeting was further adjourned.

[141] When Mr Cartwright wrote to Mr Belan on 29 April 2016 he advised Mr Belan that, taking into account the circumstances, being the Show Cause Notice, the adjournments, the medical certificates, the provision of particulars, the overall interests of the union and Mr Belan’s own admissions before the TURC regarding his misuse of his union credit card, it was proposed that if Mr Belan could not attend the show cause hearing in person, then the BCOM would deal with the matter on the papers.

[142] Mr Belan was invited to provide submissions and any evidence he wished to rely upon by 6 May 2016 and was also advised that his letter dated 26 February 2016 would be taken into consideration. Accordingly, the NUW submitted that Mr Belan had every opportunity to put a detailed case in writing to the BCOM. However, he failed to avail himself of this opportunity. The NUW further submitted that his failure to respond was surprising given Mr Belan accepted that the BCOM would rely on his admissions in the TURC. 60

[143] In any event, the NUW submitted that it was a fundamental rule of procedural fairness that a decision-maker does not face the impossible task of ensuring that a party takes the best advantage of the opportunity to present his or her case. 61

[144] It submitted that any suggestion that Mr Belan’s dismissal was tainted by procedural defects ought be rejected given the process it had followed. In any event, procedural ‘defects’, even serious ones, will not render dismissal unfair. In this case, the NUW submitted, procedural fairness issues do not arise since the material relevant to Mr Belan’s dismissal was put to him in great detail.

[145] Further, Mr Belan’s letter dated 26 February 2016 made it clear that he was aware of the substance and the details of the allegations against him, and the evidence from his own testimony to the TURC and the detailed schedule from the credit card records provided an overwhelming case against him.

[146] The NUW submitted that the Commission is bound to determine whether, on the evidence before the employer, facts existed at the time of termination that justified the dismissal. 62

[147] The NUW argued that the ‘extraordinary feature’ of this case was that Mr Belan now sought to rely on material which was available to him when the decision to dismiss him was made but which he failed to put before the BCOM. Further, the NUW argued, he had endeavoured to ‘walk back’ the evidence he gave to the TURC.

[148] In relation to the evidence given by Mr Derrick Belan, the NUW submitted that he was an entirely untrustworthy witness, who sought to rely on his privilege against self-incrimination in respect of virtually all questions put to him. It submitted that he was generally aggressive, resentful, cantankerous, and unresponsive. Further, the NUW submitted that Mr Mr Derrick Belan was a self-confessed criminal who had also been incarcerated in respect of breaches of domestic violence orders. The Final Report of the TURC, the criminal charges against him, and the manner in which he performed in the witness box in these proceedings all suggested that his evidence was entirely worthless, and smacked of a resentful payback to his former employer.

[149] The NUW also submitted that Mr Derrick Belan’s evidence was a desperate attempt to provide some cover for his brother, and significantly, to assist in the effort to undermine what was said to the TURC.

[150] The NUW also highlighted Mr Belan’s lack of personal accountability in respect of the monies he may have owed to the NUW. In this regard, Mr Belan’s evidence demonstrated that he was unable to explain why the ‘repayment’ scheme was established in the first place, and in respect of what amounts that had been advanced to him, and for what purpose. The NUW submitted that it beggared belief that Mr Belan would have arranged continuing deductions from his salary and yet be unable to identify a single item, apart from two skip bins, which the deductions were intended to repay. Mr Belan simply attributed all blame to his niece, Danielle O’Brien.

[151] The NUW contended that given Ms O’Brien was not called to give evidence, the Commission must draw the obvious inference that her evidence could not have assisted Mr Belan.

[152] The evidence, the NUW submitted, permitted only one inference - that being that Mr Belan treated the NUW’s finances and the use of the union credit card with a complete disregard for proper procedures and entirely abdicated any personal responsibility in this regard.

[153] The NUW argued strongly against the reinstatement of Mr Belan and highlighted cases which it submitted showed that the Commission will be slow to reinstate a former union organiser or industrial officer given the sensitive nature of such employment as explained by Sheldon J in Loty and Holloway v Australian Workers’ Union 63:

‘I regard the relationship between the industrial officer and the union executive as one of special confidence far beyond that which exists in relation to clerical and ordinary administrative work. It follows that it is essential that the executive of the union should have a free hand in selecting an industrial officer and, in the absence of some proven act of dishonesty, I find it hard to conceive any circumstances in which an industrial authority would intervene when a new executive of the union decides to make a change.’

[154] The NUW submitted that the requirements of s.387 (d), (e), (f) and (g) were not relevant in this case.

[155] In relation to s.387(h), the NUW submitted that no responsible employer, let alone a registered organisation, could have ignored the findings of the TURC and Mr Belan’s own evidence.

[156] The NUW’s submissions concluded with the following:

‘The NUW has experienced a searing exposure of rottenness going to the core of the organisation as it was previously administered by Derrick Belan. The new administration deserves the chance to restore it to a condition where a reputation of integrity and proper governance can be achieved - and deserved. As Mr Cartwright’s evidence made clear, it has taken significant steps on this important and necessary journey.

Mr Belan has no place in the contemporary NUW. He has been shown to be an untrustworthy person whose evidence to the TURC condemned him out of his own mouth. He is either calculating and dishonest or so lacking in insight and understanding of the standards which must be regarded as elementary for a modern union official that neither ground, it is unthinkable that he could be reinstated by an order of this Commission.’

Credibility

[157] To the extent there is inconsistency between the evidence of the NUW’s witnesses and the evidence on behalf of Mr Belan, I prefer the NUW’s evidence.

[158] Mr Cartwright was a credible witness, who gave his evidence in an honest and forthright manner. Mr Mendonca was not required for cross examination and so, with the exception of the largely inconsequential evidence about telephone conversations between Mr Belan and Mr Mendonca referred to earlier, I accept his evidence.

[159] I put little weight on the evidence of Mr Derrick Belan for two main reasons. First, while I have not drawn any adverse inference from his claim of privilege against self-incrimination, the NUW was unable to fully test the evidence given by Mr Derrick Belan. Second, matters adverse to the credibility of Mr Derrick Belan were the subject of adverse findings by the TURC. I consider this to be a relevant consideration in weighing up the value of his evidence by comparison to that of the NUW witnesses.

[160] Mr Belan was at times evasive and his recollection as to a number of matters (such as credit card transactions, or the name of his lawyer) was poor. Questions as to the credibility of Mr Belan’s evidence before the TURC were also raised in the Final Report of the TURC. I consider the TURC findings in this regard to be a relevant consideration in weighing up the value of Mr Belan’s evidence by comparison to that of the NUW witnesses. I find that Mr Belan’s evidence was in the most part self-serving and I do not consider him to be a credible witness.

Protection from Unfair Dismissal

[161] There is no dispute and I am satisfied that Mr Belan is a person protected from unfair dismissal by virtue of s.382 of the Act.

[162] I will now consider if the dismissal of Mr Belan by the NUW was unfair within the meaning of the Act.

Was the dismissal unfair?

[163] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[164] There is no dispute that Mr Belan was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[165] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.

[166] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 64as follows:

‘... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’

[167] In Blyth Chemicals Ltd v Bushnell 65(Blyth Chemicals), Dixon and McTiernan JJ said:

‘Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal… But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that grounds for uneasiness as to future conduct arises.’66

[168] I am required to consider each of these criteria in reaching my conclusion 67, which I now do in light of the finding set out above.

Valid reason - s.387(a)

[169] The NUW must have a valid reason for the dismissal of Mr Belan, although it need not be the reason given to Mr Belan at the time of the dismissal. 68

[170] The meaning of ‘valid reason’ in s387(a) is drawn from the judgement of Northrop J in Selvachandran. This meaning has been applied by this Commission and its predecessors for many years:

‘…, the adjective ‘valid’ should be given the meaning of sound, defensible or well-founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are treated fairly, ...’ 69

[171] In other words, the reasons should be justifiable on an objective analysis of the relevant facts.

[172] The question I must address here is whether there was a valid reason for the dismissal related to Mr Belan’s conduct.

[173] In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred 70. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it71.

[174] Further, the Commission does not ‘stand in the shoes’ of the employer but will need to be satisfied that the termination of the employee was for a valid reason 72.

The admission - a valid reason related to Mr Belan’s conduct

[175] As found in the Final Report of the TURC, Mr Belan admitted that he had made personal purchases using his union credit card for which he did not reimburse the NUW (the admission). He made the admission on oath. He says he didn’t lie. Mr Belan clearly believed he had not reimbursed the NUW for all of his personal purchases. This is the inescapable conclusion from his admission.

[176] Mr Belan’s admission is in my view a valid reason for his dismissal, and I so find. The admission was one of financial impropriety on the part of Mr Belan, and this constituted misconduct warranting his dismissal.

[177] The NUW was entitled to rely upon the admission made by Mr Belan and the findings made by the TURC. In my view, it was reasonable for the NUW to do so, particularly in light of Mr Belan’s non-engagement with the correspondence sent to him by the NUW. I accept the submissions of the NUW that it was obliged to act in relation to the TURC findings, and to do otherwise would have left it open to considerable and warranted criticism.

[178] I reject the evidence of Mr Belan which sought to ‘correct’ his TURC evidence and effectively withdraw his admission. There was a series of questions and answers that contained the admission and I do not accept that his answers were a mistake. Further, I am not persuaded that the admission was untrue.

[179] I reject any inference by Mr Belan that less weight should be put on his admission because of his medical condition. Mr Belan was unable to produce a copy of the medical certificate he asserted was provided to the TURC at the time he gave his evidence. There is nothing in the TURC transcript or Final Report that suggests that Mr Belan was unfit to give evidence.

[180] The medical report from Mr Belan’s psychiatrist, dated 23 January 2017 and obtained for the purposes of these proceedings, stated that Mr Belan was suffering from Adjustment Disorder with Depressed and Anxious Mood as a result of the investigation for criminal charges of fraud. The report further stated that Mr Belan ‘may not have been able to comprehend questions and formulate appropriate responses’, and that he ‘could have suffered from panic attacks …’ (my emphasis). The medical report falls short of saying that he was unable to comprehend questions and formulate appropriate responses, or that he did suffer from any panic attacks.

[181] The medical report also states that giving evidence in court is an extremely unnerving experience and goes on to express a view that his evidence ‘would not have been a valid response’ because of the extreme stress he was under. It is not uncommon that people giving evidence will be stressed. It does not, however, follow that their evidence is not ‘valid’ as a result. I reject this assertion.

[182] Further, I reject the interpretation of the admission in the way put forward by Mr Belan’s counsel, that being that the admission was not an admission to misappropriation of funds but rather a vague and uncertain admission regarding unauthorised personal use of the credit card that was contrary to other evidence given by Mr Belan elsewhere in the TURC transcript. Again, the admission in my view was clear. It was not ‘vague and uncertain’ as argued by Mr Belan.

[183] I reject the criticism of the TURC process and environment by Mr Belan, the result of which, it was submitted, meant that his evidence on oath before the TURC ought to be considered less reliable than ‘evidence given in the measured context of court or tribunal proceedings, with parties equally represented and appropriate protections in place’. Mr Belan was required to tell the truth to the TURC. The simple fact is that Mr Belan gave evidence on oath and both the NUW and this Commission are entitled to rely on that evidence. I do not accept that Mr Belan should now be allowed, some two years later, to ‘amend’ the evidence he gave in the TURC.

[184] Further, in relation to the criticism of the TURC process, I note that the Final Report of the TURC, which is publically available, provides as follows in relation to procedural fairness 73:

MEETING THE REQUIREMENTS OF PROCEDURAL FAIRNESS

142. This Commission was required to, and did, comply with the rules of procedural fairness in the exercise of its statutory powers. It may be helpful to say something about how the requirements of procedural fairness operate in the context of a Royal Commission, then address how the requirements were met by this Commission.

143. The application of the rules of procedural fairness is not a rigid process. Due process requires the implementation of procedures that are fair and appropriate in the particular case. In a Royal Commission, the most critical rule of procedural fairness is that the Commission ‘cannot lawfully make any finding adverse to the interests of (a person) without first giving a (that person) the opportunity to make submissions against the making of such a finding’. The procedures which were adopted by this Commission included, but went well beyond, this fundamental requirement …

And further:

Summary of the measures taken to ensure procedural fairness

173. As appears from the forgoing, the requirements of procedural fairness were complied with through various means. They included the following:

(a) prior to the initial rounds of hearings in 2014 the Commission placed advertisements in major newspapers alerting interested persons that hearings were about to commence;

(b) the Commission published on its website notice of pending hearings, including the union affected and lists of witnesses;

(c) persons who could be affected by the evidence were identified and given notice in advance of the hearing so that they could take steps to protect their position, including by seeking authorisation to appear;

(d) to the extent reasonably possible, and where otherwise appropriate, witness statements and relevant documents were provided to affected persons in advance of the hearing through the ECB. This was particularly the case once Practice Direction 2 came into force save for a limited number of instances where disclosure in advance could have undermined the purposes of the factual inquiry sought to be undertaken;

(e) at the outset of the hearing of each case study counsel assisting delivered an opening which foreshadowed to the extent reasonably possible in the context of an ongoing inquiry the main factual and legal issues;

(f) during examination by counsel assisting all reasonable efforts were made to put to the witness the facts which could lead to an adverse finding, so as to give the witness the opportunity to reply to those facts;

(g) most witnesses were represented by counsel who were entitled to, and did, take steps to protect his or her client’s interests, including the step of objecting to any questions which had been put by counsel assisting;

(h) persons who were affected were entitled to put on witness statements and to request counsel assisting to call witnesses or request them to put on statements. This was treated favourably in virtually every case;

(i) proceedings were conducted in public and were livestreamed. To this there was one exception. On a limited number of occasions evidence was taken in private. But later, in many instances but not all, either the transcript of the private hearing was tendered or was otherwise made available;

(j) transcripts of each day’s proceedings were published on the Commission’s website;

(k) after the conclusion of the hearing timetables were directed for the exchange of submissions. Counsel assisting made detailed written submissions which set out comprehensively the relevant facts and what counsel assisting submitted were the appropriate findings, including adverse findings; and

(l) all affected persons then had the opportunity to respond to such submissions by putting on their own submissions advancing their position and responding to any proposed adverse findings.

(footnotes omitted)

[185] I note Mr Belan was represented by the NUW’s counsel in the TURC.

[186] Finally, I accept the submission made by counsel for Mr Belan that an employer cannot justify dismissing an employee for personal use of a corporate credit card where such personal use was approved by the employer⁷⁴. However, the valid reason for Mr Belan’s dismissal is his admission, not any approved personal use of the NUW credit card.

Requirement for the NUW to undertake its own investigation

[187] I reject the assertion by Mr Belan that the NUW was required to undertake an investigation of its own regarding his alleged misconduct in circumstances where his admission, made on oath before the TURC, was a matter of public record and where he was clearly put on notice that this was to be relied upon by the NUW.

The repayment plan

[188] There is no evidence before me which supports a finding that Mr Belan’s repayment plan had remedied or even overcompensated for any private expenditure incurred by him on his NUW credit card.

[189] Mr Belan’s evidence, before the TURC and before the Commission, was that in relation to the bulk of the credit card transactions, he did not know or could not recall whether the expenditure was made by him, or to the extent it was made by him, whether the expenditure was for personal purposes or NUW purposes. In these circumstances, including where on his own evidence he kept no record of which transactions were personal, it simply cannot follow that Mr Belan could calculate that he had remedied or over-compensated for his private expenditure. Accordingly, I reject Mr Belan’s evidence in this regard.

[190] Further, I respectfully agree with the findings of the TURC that Mr Belan’s submissions that he may have over-compensated any private expenditure do not overcome the admission.

[191] I accept the submissions made by the NUW that Mr Belan did not take any personal responsibility in ensuring that his personal expenditure was properly accounted for. It is not acceptable, as Mr Belan has done, to simply blame Ms O’Brien for his lack of diligence in this regard. A lack of a written policy or procedure as to the use of the NUW’s credit cards does not excuse Mr Belan’s conduct in this regard.

[192] Mr Belan had a duty to ensure that he properly accounted for and repaid NUW monies used for his personal purchases. Instead, he treated the NUW’s finances with complete disregard. His conduct (that is, the admission) was incompatible with this duty and in my view was destructive of the necessary confidence between the NUW and Mr Belan, as discussed in Blyth Chemicals. His failure to meet his duty in this regard provides a further valid reason for Mr Belan’s dismissal.

Custom and practice - personal credit card use

[193] I accept the evidence of Mr Cartwright and Mr Mendonca that they were not aware of any arrangement whereby the NUW issued credit cards could be used for personal expenditure.

[194] While this arrangement may have been in place for a select few, I do not accept the evidence of Mr Belan and Mr Derrick Belan that there was a ‘custom and practice’ within the NUW more broadly to use the NUW issued credit cards for personal expenditure. Specifically, I accept the evidence of Mr Mendonca that had there been such an arrangement available, he would have known about it. This is particularly so given his evidence the he was

‘good friends’ with Mr Belan and they spoke regularly.

[195] In any event, any approved use of the credit card does not detract from or impact Mr Belan’s admission, or his failure to properly account for his use of the card for personal purposes.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[196] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 75 in explicit terms76 and in plain and clear terms77. In Crozier v Palazzo Corporation Pty Ltd78, a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

‘[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.’ 79

[197] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 80

[198] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Belan before his dismissal was effected.

[199] Satisfaction of these requirements will usually require a straightforward factual inquiry to be made, namely: what was Mr Belan told about the reason for the dismissal, before the dismissal took place, and was he given the opportunity to respond?

[200] I find that Mr Belan was informed of, and given the opportunity to respond to, the circumstances that gave rise to his dismissal.

[201] The process undertaken by the NUW, from the issuing of the Show Cause Notice on 13 February 2016 to the dismissal of Mr Belan on 16 May 2016, was a fair and reasonable process.

[202] I consider it was entirely appropriate and reasonable for Mr Cartwright to form the view, following the evidence given by Mr Belan before the TURC and in particular his admission, that Mr Belan ought be summoned to show cause as to why he should not be removed from the NUW. The NUW was entitled in the circumstances faced by it to act as it did.

[203] The time period between the issuing of the Show Cause Notice and the Termination Letter was a period of some three months. The correspondence between the parties during this period, which is set out earlier, clearly demonstrates that Mr Belan was advised of the allegations against him, and he was given an opportunity to respond. Mr Belan did respond, via an email drafted by a lawyer on his behalf, to the Show Cause Notice. He requested further details of certain credit card transactions, which were provided to him by the NUW’s lawyers on 3 March 2016 under cover of a letter which posed the question: ‘… in light of the admissions that you have made ... why is it not open to the Committee of Management to make an adverse finding against you and act upon that finding’, and ‘it is noted that during the evidence before the Royal Commission you admitted that on a few occasions you made personal purchases using your credit card for which you did not reimburse the NUW NSW’.

[204] Mr Belan was clearly advised in the 3 March letter that the NUW intended to rely on the transactions set out in the Show Cause Notice, along with the admission made by Mr Belan before the TURC, when the Committee of Management considered the matter.

[205] The 29 April letter offered Mr Belan the opportunity to provide a response in writing to ‘all of the circumstances’, being the Show Cause Notice, the adjournments to allow Mr Belan further time to respond, his medical certificates, the provision of particulars, the interests of the union and the admission made by Mr Belan before the TURC.

[206] Further, I do not accept Mr Belan’s submissions that he was unfit to deal with, or respond to, the matters raised in the show cause process. Mr Belan was well enough to engage the services of a lawyer to prepare an initial response to the Show Cause Notice.

[207] I reject Mr Belan’s submission that he did not engage in the show cause process because he could not find the energy to ‘fight the issue if they were going to terminate me anyway’. Mr Belan, in commencing these proceedings within 21 days of the date of his dismissal, was able to find the energy to engage in an unfair dismissal application. His application, filed on 6 June 2016, was typed (not handwritten) and articulate. Mr Belan is defined in the application as ‘the applicant’ and the NUW as ‘the respondent’. The application states that the decision ‘by the respondent to terminate the applicant is not based on a sound, defensible or well founded reason’ (using the language from Selvachandran) and ‘does not give rise to a valid reason for the dismissal of the applicant’. Whether Mr Belan completed the application form himself or engaged the assistance of another, he was clearly able to muster the energy to commence this process. Further, Mr Belan was able to engage the services of a barrister to assist him in the conciliation conference on 29 June 2016, and his current lawyers filed a notice of commencing to act on 3 August 2016. These are not the actions of a person so unwell as to not be able to respond to the show cause process.

[208] There was no medical report provided to the NUW at the relevant time (being from the issuing of the Show Cause Notice to the termination of Mr Belan’s employment) which verified that Mr Belan was unable to engage in the show cause process because of health issues. In my view, there is a difference between an employee being unfit to attend work (being the circumstances supported by the medical evidence in this case), and being so unwell as to be unable to engage in a show cause process.

[209] Overall, I find that Mr Belan was clearly informed of the allegations against him and was given an opportunity to reply. In particular, Mr Belan was clearly on notice that the NUW intended to rely upon his admission before the TURC.

[210] Further, I consider that that the Show Cause Notice should not have come as any surprise to Mr Belan, given his own evidence on oath to the TURC. I find it hard to accept that an elected Organiser, with more than ten years’ service with the NUW, would not appreciate the importance of responding to a Show Cause Notice and the correspondence that followed.

[211] There was no evidence that the members of BCOM had a predetermined view of the outcome of the process, as asserted by Mr Belan. Accordingly, I reject any suggestions that the outcome of the show cause process was a fait accompli.

[212] In the absence of any defence of the allegations, particularly the absence of any response to the statement from the NUW that it would rely on Mr Belan’s admission, the outcome of the show cause process could hardly be considered surprising.

[213] To the extent there is any validity to the criticism by Mr Belan of the process undertaken by the NUW, I do not consider it to be of such significance so as to outweigh Mr Belan’s conduct.

[214] In summary, I find that Mr Belan was notified of a valid reason for his dismissal and was provided with an opportunity to respond to the reason for dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[215] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[216] There was no evidence or submission that Mr Belan requested a support person and such request was refused by the NUW.

Warnings regarding unsatisfactory performance - s.387(e)

[217] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 81

[218] Given this is not a case in which Mr Belan’s performance was unsatisfactory, this consideration is not relevant.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[219] The NUW is a registered industrial organisation. It is experienced in industrial relations matters, including providing advice about disciplinary issues to its members. It might also be expected that an Organiser (such as Mr Belan) would also be aware of the procedures associated with disciplinary action. I am satisfied that the size of the NUW’s enterprise and its dedicated human resource expertise did not impact on the procedures followed by the NUW in effecting the dismissal.

Other relevant matters - s.387(h)

[220] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[221] I agree with the submissions made by counsel for the NUW that the picture which emerged of the operations of the NUW through the TURC was scandalous. It revealed that there were no appropriate financial controls in place and its systems were open to gross abuse.

[222] I have taken into account Mr Belan’s length of service and the financial hardship caused by his dismissal, which is set out in particular at paragraph 49 of this decision.

[223] I have also taken into account Mr Belan’s evidence as to the repayment plan, the poor state of the financial records of the NUW, the difficulties arising from an evidentiary perspective from the state of the financial records, and the attitude of the previous leadership of the NUW to Mr Belan’s conduct as evidenced by their submissions to the TURC.

[224] However, none of these circumstances outweigh or excuse the seriousness of Mr Belan’s conduct. Nor do they overcome the fundamental and serious breach of trust and confidence that resulted from Mr Belan’s own admissions, on oath, before the TURC, and his complete disregard for his duty to properly account for and repay NUW monies he used for personal purchases.

Conclusion

[225] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Mr Belan was for a valid reason, and was not otherwise harsh, unjust or unreasonable.

[226] In the circumstances, the application for an unfair dismissal remedy is dismissed. An order to that effect will accompany this decision.

DEPUTY PRESIDENT

Appearances:

P Lowson of Counsel with A Mataere, for Nick Belan.

J Nolan of Counsel with M Burns, for National Union of Workers.

Hearing details:

2017.

Sydney:

March 8, 14.

Final written submissions:

12 May 2017.

1 Exhibit R1 – Derrick Belan Facts Sheet, setting out background and details of police charges.

2 See [2016] FWC 8538.

3 See [2016] FWC 8125.

4 [2017] FWC 1439.

5 Exhibit A1 at paragraph 17.

6 Ibid at paragraphs 22 and 23.

7 Ibid at paragraph 25.

8 Attachment MC-02 to Exhibit R2.

9 See Final Report of Royal Commission into Trade Union Governance and Corruption, 28 December 2015.

10 Ibid Volume 2.

11 Ibid Volume 1.

12 See Attachment MC-05 to Exhibit R2.

13 See Attachment MC-06 to Exhibit R2.

14 Transcript PNs 1374 to 1400.

15 See Attachment MC-07 to Exhibit R2.

16 See Attachment MC-08 to Exhibit R2.

17 See Attachment MC-09 to Exhibit R2.

18 Exhibit A1 at paragraph 18.

19 Ibid at paragraph 22.

20 Ibid at paragraph 23.

21 Ibid at paragraph 25.

22 Ibid at paragraph 26.

23 Mr Belan’s reply to the Show Cause Notice stated he received the Show Cause Notice on 13 February 2016.

24 Exhibit A1 at paragraph 33.

25 Exhibit A2.

26 Ibid at paragraph 9.

27 Ibid at paragraph 10.

28 Ibid at paragraph 11.

29 Transcript PN1246.

30 Exhibit A2 at paragraph 16.

31 Ibid at paragraph 18.

32 Ibid at paragraph 20.

33 Transcript PN1454.

34 Exhibit A2 at paragraph 24.

35 Ibid at paragraph 33.

36 Transcript PNs898-960.

37 Ibid at paragraph 37.

38 Exhibit A4.

39 Ibid at paragraph 4.

40 Transcript PNs1665-1671.

41 Exhibit A5.

42 See Attachment MC-03 to Exhibit R2.

43 Ibid at paragraphs 15-19.

44 Exhibit R2 at paragraph 18.

45 See Attachment MC-02to Exhibit R2 at page 146.

46 PN 3092

47 Exhibit R4.

48 (1983) 6 R 67.

49 Applicant’s Outline of Submissions dated 4 April 2017 at paragraph 4.

50 (1995) 62 IR 371.

51 Ibid at paragraph 15.

52 Applicant’s Outline of Submissions dated 4 April 2017 at paragraph 16.

53 Ibid at paragraph 17.

54 Ibid at paragraph 18.

55 Transcript PN688.

56 Applicant’s Outline of Submissions in Reply dated 12 May 2017 at paragraph 5.

57 Ibid at paragraph 7.

58 Ibid at paragraph 8.

59 Ibid at paragraph 16.

60 Transcript PN1406.

61 Sullivan v Department of Transport (1978) 20 ALR 323.

62 Lane v Arrowcrest (1990) 27 FCR 27.

63 [1971] AR (NSW) 95 at 109.

64 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

65 (1993) 49 CLR 66.

66 Ibid at 81-82.

67 Sayer v Melsteel[2011] FWAFB 7498.

68 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

69 Ibid at 373.

70 Edwards v Giudice (1999) 94 FCR 561.

71 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

72 Miller v University of New South Wales (2003) 132 FCR 147.

73 See Final Report of Royal Commission into Trade Union Governance and Corruption, 28 December 2015 at Volume 1.

74 Miller v Sunland Park Pty Ltd and Anor [2014] FCCA 89, referred to in Applicant’s Outline of Submissions dated 4 April 2017 at paragraph 50.

75 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

76 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151.

77 Previsic v Australian Quarantine Inspection Services Print Q3730.

78 (2000) 98 IR 137.

79 Ibid at 151.

80 RMIT v Asher (2010) 194 IR 1, 14-15.

81 Annetta v Ansett Australia Ltd (2000) 98 IR 233 at 237.

Printed by authority of the Commonwealth Government Printer

Nick Belan v National Union of Workers-New South Wales Branch

[2017] FWC 5027

19 OCTOBER 2017

DECISION