Industrial Relations Commission of New South Wales CITATION: DongDong Yang and Chinese Migrant Welfare Association Inc Application by DongDong Yang re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 [2008] NSWIRComm 1025 APPLICANT DongDong Yang PARTIES: RESPONDENT Mr Chan Wing Fan FILE NUMBER(S): 1951 of 2007 CORAM: Tabbaa C CATCHWORDS: Unfair Dismissal; Contract Term; Failure to account for petty cash expenses; Failure to report on progress of project; Misconduct. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 24 & 25 January, 2008 DATE OF JUDGMENT: 28 April 2008 Applicant unrepresented LEGAL REPRESENTATIVES: Respondent unrepresented DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Tabbaa C Monday, 28 April 2008 Matter No IRC 1951 of 2007 DONG DONG YANG v CHINESE MIGRANT WELFARE ASSOCIATION INCORPORATED Application by Dong Dong Yang re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2008] NSWIRComm 1025 1 Mr Dong Dong Yang (the Applicant) filed an application on 19 October 2007 pursuant to the provisions of Section 84 of the Industrial Relations Act 1996 seeking relief for his alleged unfair dismissal by the Chinese Migrant Welfare Association Inc. (the Respondent) 2 The Applicant commenced as a volunteer with the Respondent organisation in 2004. He accepted a part-time paid position on a project which concluded on 30 June 2007. During the currency of that paid employment, he accepted another part-time position on a project which concluded on 28 September 2007. 3 He contended that he was summarily dismissed on 24 September 2007 for his alleged failure to produce justification for his petty cash expenditure on the latter project. He believed that he was not obliged to present the report until after the conclusion of the project. He contended that his dismissal was a result of the Respondent's desire to keep for itself the balance of the funds at the conclusion of the project rather than distribute them amongst the staff. 4 The matter was listed for conciliation and directions hearing before Bishop C on 09 and 22 November 2007. However, those conciliation attempts failed to resolve the claim. Standard directions were issued and the matter was re-allocated for hearing before the Commission as currently constituted on 24 and 25 January 2008. 5 Mr D Yang was unrepresented. He gave evidence on his own behalf in the proceedings and also tendered a statement from Ms Hellen Meng, previously a Board Member and Workers' Co-Ordinator of the Respondent organisation. The respondent was represented by Messrs Chun Wing Fan and Mr Thao Bang (Bill) Huang. The Respondent called evidence from: Mr Chun Wing Fan Past Chairman/Project Manager-CRC Poject Mr Thao Bang (Bill) Huang Current Chairman Ms Cathy Gao Project Officer-Ashfield Council 6 A timetable was directed for the provision of written submissions with the Applicant's response to the Respondent's written submissions being required by close of business on 15 February 2008. 7 The Commission was ably assisted by Mr Wenxin Bai, an Interpreter in the Mandarin language, from the Community Relations Commission. BACKGROUND 8 The first connection the Applicant had with the Respondent was in 2004 in his role as a volunteer for which he received a Certificate of Appreciation on 01 December 2005. 9 In mid-January 2007, he was offered, and accepted, part-time employment on a fixed term contract working with the Respondent's Migration Settlement Project staff on the Settlement Grant Program (hereinafter referred to as "SGP") which ran from mid-January till its expiration on 30 June 2007. 10 The Respondent received a grant from the Community Relations Commission to conduct a community harmony project (hereinafter referred to as "CRC") with support from Ashfield Council and Macquarie University. The total funding for the project was $9619.50, including GST. The project required the engagement of part-time staff to implement it in 2007. Mr Chun Wing Fan was appointed Project Director with responsibility for planning and supervision. 11 During the term of his first paid engagement, the Applicant accepted another part-time fixed term contract as a Community Liaison Officer, pursuant to the Social and Community Services Employees (State) Award, on the CRC project for a period of 28 weeks at 12 hours per week commencing on 19 March 2007 and concluding on 28 September 2007. 12 The Applicant was asked to provide a project progress report and a properly formatted petty cash expenditure report during the life of the project. He failed to do so and was dismissed on 24 September 2007. 13 That project concluded, as scheduled, on 28 September 2007. THE EVIDENCE 14 The Applicant received a joint email from Scott Su, Cindy Chen and Chun Wing Fan dated 18 March 2007 confirming his appointment as Community Liaison Officer on the CRC project from 19 March until 26 September 2007 (a period of 26 weeks at 10 hours per week). 15 Mr Fan received an email on Monday, 23 April 2007 from a Management Committee member/Support person, Ms Guilan Zhou, informing him that she had been in attendance at the Harmony Seminar and observed that the Applicant had been working very hard, appeared very dedicated and very cooperative. It was felt that 10 hours was insufficient and recommended that the Applicant be provided with "several times ... that amount" to undertake his work effectively. 16 The parties executed a contract on 29 May 2007 in relation to that appointment providing for the terms to be 12 hours per week at $16.40 per hour for a period of 28 weeks, subject to the availability of funding. Mr Fan stated that he had prepared the budget for the CRC Project in conjunction with the Treasurer. The $16.40 per hour was higher than what the Applicant had been receiving on the SGP project and was also higher than what the other staff members were earning. 17 The contract provided that termination may occur by the provision of 14 days' written notice or forfeiture of two weeks' pay except in the case of misconduct, in which case no notice was required to be provided to the Applicant. 18 In early July 2007, the Treasurer, Ms Cindy Chen, alerted Mr Huang to the delay she was experiencing in receiving a petty cash expenditure report from the Applicant for the SGP project for the period from mid-January to June 2007. 19 Mr Huang pursued the matter with the Applicant on 15 July 2007 advising him that the report was a condition of the funding agreement with the Department of Immigration. 20 In mid-July 2007, the Treasurer complained to Mr Huang that she had received a pile of receipts and papers from Mr Yang but they were unclear and inadequate for audit purposes. Both Messrs Huang and Fan gave evidence that the Auditor had complained about receiving a pile of receipts from the Applicant without clarification as to how they supported the petty cash withdrawals on the SGP project. 21 Mr Fan asked Mr Yang, on 30 July 2007, to justify his withdrawal, up to that time, of the sum of $1000 in petty cash. He also clearly advised the Applicant that he was required to submit to him for his approval the budget on spending on any future programs. 22 In the absence of a reply from him, the Treasurer forwarded an email to the Applicant on 31 July 2007 seeking an urgent report on the CRC Petty Cash expenditure for inclusion in the 2006-2007 financial report. The Applicant replied but did not enclose the attachment as he stated. 23 Mr Huang offered to reconcile the receipts and prepare the report on behalf of the Applicant. He gave evidence that it took him a whole evening to sort them out and in so doing discovered anomalies and uncertainties as to how the petty cash for the SGP project had been spent. The expenditure did not comply with their rules. Almost half of the $618.43 he had withdrawn in petty cash had not been spent appropriately, for example, attending the training courses at DIMEA, the lunch expenses, and the taxi fares. He highlighted approximately six items of concern and, at about 4 or 5 am on 01 August, 2007, he sent out emails about the petty cash report to both the Applicant and the Treasurer asking them to discuss and work out the petty cash report that afternoon. 24 Mr Huang gave evidence that, after he had assisted the Applicant in compiling his petty cash receipts for the SGP project, the Applicant had not shown any gratitude. Instead he had sworn at Mr Huang and had thumped the table. 25 Mr Huang considered that behaviour to be misconduct and a formal letter of warning was forwarded to the Applicant regarding anomalies relating to his employment as Migration Settlement Officer on the SGP project. 26 The Applicant stated that he had forwarded an email response to Mr Huang on 02 August 2007 in which he provided a clear explanation for the matters raised in the warning letter and requested a withdrawal of the warning letter. 27 He further stated that Mr Huang had telephoned him that evening and expressed regret at his rash decision to send the warning letter particularly in view of the fact that, according to the Respondent's policy, the letter was ineffective as he had consulted with only one member of the Management Committee and that was Mr Fan. Mr Huang had concluded that on that basis, since it was not an official letter, it was unnecessary for him to withdraw it. That statement was not backed up by the evidence. 28 The Applicant forwarded an email to the Treasurer at 9.33 pm on Wednesday, 15 August 2007 suggesting that they meet on Friday afternoon so that he could give her his petty cash expenditure for the CRC project. 29 The meeting between the Applicant and the Treasurer proceeded at 2 pm on Thursday, 16 August 2007 at which time the applicant provided Ms Chen with all his petty cash receipts. She advised the Applicant that she required him to provide his report in another format. Mr Yang withdrew a further $300 in petty cash from her. Ms Chen sent an email to the Applicant after the meeting and attached a copy of another employee's petty cash spreadsheet to confirm how she wanted his report prepared. 30 On Saturday, 18 August 2007, Mr Fan sent an email to the Applicant and copied it to Ms Chen (Treasurer), Mr Huang (Chairman), Zhou Guilan (Support Group Member) and Belinda (Support Group Member). In it he raised concerns about the Applicant's use of petty cash on the CRC Project. He pointed out that the Applicant had withdrawn up to 10% of the budget by the end of July 2007. Taking the recent $300 withdrawal into account, the Applicant, as at 18 August, had withdrawn a grand total of $1700 in petty cash on the CRC project. He noted that at least one petty cash expenditure related to a lunch. It was pointed out that the Respondent was engaged in community work, not public relations work. The community was to be encouraged to participate voluntarily and contribute their time, support and money. Mr Fan further pointed out that the Respondent did not incur overheads in relation to rental, equipment and such like and that it only incurred expenses in relation to refreshments when programs were organised for the local community. It was noted that, in relation to the CRC project, two seminars were organised on Taxation, one workshop was organised to enlighten the local community on the functions of Ashfield Council and one meeting was held with approximately 4-5 shopkeepers. The next function, it was pointed out, was being organised by the Council at no expense to the Respondent. The Applicant was asked to provide, by the following week, an itemised summary of his petty cash expenditure by programs and a progress report on the project to date and state whether it was achieving its objectives. He was instructed not to spend any further petty cash pending the provision of those reports. The Applicant was advised that he was required to attend a meeting on Friday, 24 August 2007 to discuss those reports. Both Support Group Members were in attendance. During cross-examination, Mr Fan confirmed his statement that the two taxation seminars related to the migration project and not the CRC project. He pointed out that the CRC project was designed to promote community harmony and assist shopkeepers to be more aware of the functions of Ashfield Council thereby promoting more co-operation between them and the Council. The programs relating to it therefore were the signage and shopfront design competition organised by the council, the shopkeepers afternoon tea, a workshop on the multicultural business environment and also the multicultural festival. It was evident, therefore, that taxation was totally out of context and did not form part of that work plan. He was aware that in the period March - August 2007, Mr Yang had arranged two taxation seminars, one workshop on Council functions and an afternoon tea for 4 or 5 shopkeepers. 31 Mr Yang stated that he sought clarification of what was required of him by telephone on that day. During that conversation, he had accused Mr Fan of "blackening" his name in that email, particularly when Mr Fan referred to expenditure of petty cash on lunch with shopkeepers. He pointed out that Mr Fan had no right to spread gossip even though he was obliged to report to the Management Committee. 32 The Applicant forwarded an email to Mr Fan on Sunday, 19 August 2007 stating that although he was prepared to provide the report, he would not do so prior to taking two weeks' unscheduled leave - one week's annual leave and a further week of leave without pay due to stress. The communication from the Applicant relevantly read: "...Since I fell sick last time, I am always feeling uncomfortable. Doctor says it's because of psychiatric adjustment that I need to go through, suggesting me to leave China Welfare Association's work environment for a period of time. I hope to take two week's holiday from next week. Mr Fan says that my paid annual leave is only more than a week or so, so I want to know whether I can take a week unpaid leave. ... 33 Mr Fan issued an almost immediate response seeking the expenditure report by Friday, 24 August 2007 to allow the meeting to proceed with the Support Group members. He explained to the Applicant that the report was required for the purpose of forward planning and to satisfy the Management Committee of the income and expenditure level of the project. 34 The Applicant did not provide a summary of his petty cash expenditure prior to proceeding on leave. 35 In addition, the Applicant had forgotten about a function scheduled to be held on Wednesday, 29 August 2007 in conjunction with Ashfield Council. The Respondent considered the matter to be grossly unprofessional and a total embarrassment. It had been cancelled without any notification to Mr Fan or to the Council. 36 Upon his return from leave, the Applicant forwarded an email to Mr Fan at 7.23 pm on Friday, 31 August 2007 and copied it to Mr Huang, Zhou Guilan, Belinda and Irina Lu. He thanked Mr Fan for inquiring about his health but pointed out that it was not a result of physical tiredness but, rather, the stressful work environment that had caused him to take a break. He stated that he felt much better after that short break and sought a meeting with him at 3 pm on Sunday, 02 September to discuss his ideas for future projects. In reference to the 24 September 2007 event, the Applicant acknowledged that both Mr Fan and Belinda were loathe to spend any part of the budget in subsidising the local shopkeepers and that he fully accepted the reasons proffered in that regard and informed him that he had adjusted his plans accordingly. He indicated that he would collect the discount vouchers from the shopkeepers the following week and was aiming to advertise the function that weekend. 37 Mr Fan forwarded an email to the Applicant on Saturday, 01 September 2007 in which he turned down the request to meet with the latter on Sunday indicating that, in his view, a review of the work already done had greater priority. He instructed the Applicant, once again, to produce a summary of petty cash expenditure and an interim report on the progress of the project to date. 38 Mr Fan repeated his request for the two reports to be supplied prior to a meeting with the Applicant on 07 September on two further occasions in emails sent to the Applicant between Tuesday 03 September 2007 and Thursday, 05 September 2007. Mr Fan pointed out that staff owed a duty to their employer to comply with such requests. 39 Mr Yang totally ignored the requests for a petty cash expenditure summary. 40 A meeting was held between the Applicant and Messrs. Fan and Huang on Saturday, 07 September 2007 at which the Applicant provided three reasons for his refusal to provide the petty cash expenditure report. Firstly, he considered that the report would be used for rumour mongering to discredit him within the organisation; secondly, he did not believe that he was obliged to provide either of those reports prior to the completion of the project and, thirdly, he had not received a reason why the Respondent needed the reports ahead of the completion of the project. Mr Fan explained to him that it was normal business practice to keep tabs on the progress of a project. He explained that rumours are based on misunderstanding and the lack of evidence. He pointed out to the Applicant that there were no rumours and even if there were, the best way to dispel them was to discredit them by providing a petty cash expenditure report. At the conclusion of the meeting, Mr Yang sought a guarantee that he would not be adversely affected by the provision of a petty cash expenditure report. Mr Fan replied that he had to consider the report before he could reach any conclusions or make any judgments. Mr Huang stated that he had advised Mr Yang not to pay attention to the rumours. If he concentrated on his own work, the rumours would dissipate. Mr Huang confirmed that Mr Yang refused to hand in the petty cash report as requested, repeatedly stating that he could put it together in the format requested of him in just one evening but, because there were rumours circulating about him, he would not hand in the report. Mr Fan issued him with an ultimatum at that meeting that if the reports were not handed in by the following week, the Respondent would be taking action against him. Mr Huang further stated that he pointed out to the Applicant that it was not a valid reason for refusing to submit the report. He said that he spoke to the Applicant calmly and patiently pointing out to him that Mr Fan was not in a position to promise, prior to reviewing such report, that there would be no adverse consequences. On that note, the Applicant turned around and walked out. 41 The Applicant did not provide the Report. Instead, at 1.08 am on Monday, 10 September 2007 he emailed Messrs Huang and Fan, Zhou Guilan, Belinda and Irina Lu indicating that there was a communication problem between the parties. He wanted to clarify issues relating to the gossip that was circulating and wanted "a reasonable reason why an additional report must be submitted" in relation to his petty cash. He considered the requirement to provide the petty cash report to be an additional chore and refused to supply it until both those issues had been resolved. At that point, Mr Fan issued instructions that all payments to the Applicant, including wages, should be suspended. 42 Mr Fan issued the Applicant with a warning in an email dated Saturday, 15 September 2007 that all wages would cease permanently if a response was not received by Monday, 17 September 2007. Mr Yang was given the option of either providing the petty cash expenditure report or refunding the $1700. It was pointed out to the Applicant that it would be presumed that he had been drawing wages without producing any work in the absence of any project report indicating to the contrary. He was warned that if he failed to produce the reports, the blame would rest solely at his feet and the Respondent would use all available means, including legal action, to hold him accountable. In conclusion, he invited the Applicant to discuss the matter with him by calling him either at work, or at home until 10 pm or on his mobile telephone. 43 During cross-examination, Mr Fan stated that he had forwarded an email on the same day to the members of the Management Committee and its Chairman, Mr Huang, appraising them of the situation in relation to petty cash. He had made a recommendation to Mr Huang to put in process a means by which Mr Yang could be dismissed. 44 The Applicant explained that because Mr Fan used his personal email address to forward a warning letter to him, he did not consider it to be an acceptable means of communicating with him formally. On that basis, he considered the contents of that email to be a form of threat. During cross-examination, the Applicant acknowledged that the email did not state that his wages had been suspended at that point in time but went on to add that there were many emails exchanged between them and the fact was that his wages ceased from 10 September 2007. When pressed, he stated that he found out that his wages were stopped when he visited the home of the Treasurer on or after 15 September 2007. 45 Mr Fan reported that on Monday, 17 September 2007, he received a "very rude" email from the Applicant, in chinese, insisting on his right to continue to claim wages. Mr Bai assisted the Commission with its translation. In it, Mr Yang stated that he had been shocked by the contents of the email of 15 September and questioned Mr Fan's authority over him; that he would not provide an interim report because it was not included in the work plan; that he was only required to provide a report at the conclusion of the project and that no valid reason had been provided to him as to why the report was required urgently. He accused Mr Fan of spreading unsubstantiated gossip about him and pointed out that he had not received an apology from him in that regard. He questioned how he can provide Mr Fan with a report under such circumstances. He advised Mr Fan to calm down and stop getting agitated. He concluded by asking for the suspension on his wages to be lifted pointing out that he was owed a lot of money in unpaid overtime. 46 Mr Huang stated that, because the Applicant had not provided a valid explanation for his refusal to submit the reports required of him and because of the insulting tone of the Applicant's email reply to Mr Fan, he sought, and received, advice from the Office of Industrial Relations to the effect that Mr Huang could be summarily dismissed. 47 Over the next few days, Mr Fan consulted with Mr Huang and helped him draft a dismissal letter for consideration by members of the Management Committee. Any member of the Management Committee could have provided feedback on its contents but he only received one response and that was from Mr Huang who stated that he had consulted with the other members of the Committee and the decision to dismiss Mr Yang was unanimous. Mr Fan stated that he was not a member of the Management Committee but he had included his name with that of Mr Huang on the dismissal letter because he wanted to take responsibility as the applicant's supervisor. 48 Mr Huang gave evidence that once he had received advice from Mr Fan about the Applicant's failure to comply with the deadline for providing his reports, he had, on 17 September 2007, emailed and then had very lengthy conversations with three of the Committee members over the telephone - Xui Lan Zhou, Caixian, and Belinda Zhang who also happened to be members of the Applicant's Support Group. Those conversations commenced at about 9 pm and continued until approximately 1 am the following morning. They expressed their respect for the advice provided by Mr Fan and the decision was made to dismiss the Applicant. 49 Mr Huang then drafted a letter which he forwarded to all the Committee members in the wee hours of the morning of 18 September 2007. The Interpreter assisted by reading out the contents of that letter in English. Basically, Mr Huang had detailed all of the negotiations held with the Applicant in relation to the request for reports on the CRC project. Mr Huang further reported that he had briefed and consulted with the members of the Support Group and they endorsed Mr Fan's recommendation to dismiss the Applicant. Mr Huang urged the other members of the Management Committee to also support that recommendation. Members of the Committee were invited to contact Mr Fan or himself if they had any qualms about that course of action. 50 During cross-examination, Mr Huang explained that the Support group was not a decision making body. It was made up of 3 volunteers who assisted the Applicant with his duties such as delivering letters and such like. When approached by the Applicant, one member proposed that the Support Team investigate his grievance but the other two members had rejected that idea. Nevertheless he had discussed the matter with all the members of the Support group and they had all agreed with and supported Mr Fan's recommendation. 51 Mr Huang stated that the majority of the business of the committee was conducted via email or by telephone with only about five or six face-to-face meetings being held annually. He explained that a motion was passed whenever three or more committee members supported it. As at the time of the hearing, not one member of the Management Committee had expressed disagreement with, or requested clarification of, the proposal to dismiss the Applicant. 52 The Applicant forwarded another email in chinese to Mr Huang at 9.41 pm on Tuesday, 18 September 2007. That email was copied to various other people. Once again the correspondence was translated by the Interpreter to read that the Applicant had asked for an inquiry to be held into what he considered to be deliberate defamation against him with a view to clearing his name of allegations of misuse of funds. 53 It was followed up by another email by Mr Yang to Management Committee members dated Friday 21 September 2007 which was considered to be both slanderous and disturbing. The email, addressed to Scott Su, was relevantly interpreted by the Interpreter, "That is right. It is really shameless, that only reveals your lies and it is contradictory and it became agitated and then that shows the hooligan's habitual style." 54 The Applicant was dismissed for misconduct on Monday, 24 September 2007 in a letter jointly signed by Messrs Fan and Huang. The letter of dismissal advised that he had withdrawn the following amounts from petty cash: $200 on 30 March, $200 on 18 May, $1000 on 06 June and $300 on 16 August 2007. It was pointed out that despite numerous requests since late July for a report on his petty cash expenses and provision of receipts, he had failed to comply. He was reminded that he had withdrawn $600 on the SGP project for which he had not satisfactorily accounted for half and for which he had not justified the other half. It was pointed out that his behaviour in refusing to comply with a legitimate request by Mr Fan to provide an expenditure report was unacceptable. He was asked to refund the petty cash of $1700 on the CRC project and to return any property belonging to the Respondent organisation. 55 Mr Fan stated that he dismissed the Applicant because he formed the impression that the Applicant had no intention of submitting the petty cash and project reports, that he would not return the unsubstantiated petty cash or the Respondent's property and that he would continue to claim his salary as per his email of 17 September despite the fact that he had not worked for a while and was not working as per the schedule when he did work. 56 Ms Cathy Gow, Project Officer-Ashfield Council, stated that the first seminar held in relation to the CRC project was organised by the Respondent with the support of Council. Having been involved in that seminar, she found that the Applicant did not have sufficient organisational experience and decided that she would assume the leadership on the second occasion. The second seminar, therefore, was to be organised by the Council with the support of the Respondent. 57 Ms Gow stated that the second seminar had been postponed, not cancelled. At the time she was Acting Administration Assistant in the Council and, because of limited resources, could not handle the one-day seminar on her own. Mr Yang was hard to work with, was not around much and they did not have much contact. She considered it to be a working partnership yet there was no contact with the Applicant. Instead, she had worked with Chun Wing and the other volunteers. She admitted that she had not tried to contact him. 58 There was a neighbourhood meeting scheduled by the Applicant for 24 September 2007. On 13 August she sent an email to the Applicant listing the names and telephone numbers of persons to invite to that afternoon tea. Those shopkeepers normally meet on a weekly basis next door to her office. A week before the event, when she had not heard anything from those shopkeepers, including Mr Yang, she realised that they had not been contacted about the event and no flyers had been sent out informing them of the event. During a citizenship event the week before, she had discussed it with Mr Huang who admitted he knew nothing about the function and they had both agreed that she would postpone it and reschedule it to 09 November. 59 The Applicant failed to respond to the contents of the dismissal letter. Instead, he forwarded an email which contained his project report to members of the Support Committee at 2.17 am on Wednesday, 26 September 2007. A copy was not forwarded to either Mr Fan or Mr Huang. The Applicant agreed, during cross-examination, that he had submitted his project report to the three members of the Support Team. He explained that he did so because the Support Team had allegedly undertaken to investigate his dismissal and look into the actions of the Management Committee. The Report was not forwarded to any of the management team and, once again, the Applicant refused to recognise the position held by Mr Fan: Fan: Q. So this email, whatever it contains, and it's a report on the progress of the project according to the applicant, never went to the coordinator of the project? Yang: A. I do not know whether Mr Fan is the coordinator of the project, but this email was not sent to Mr Fan. 60 The Applicant filed a section 84 unfair dismissal claim on Friday, 19 October 2007. The Applicant alleged that he had been dismissed a few days prior to the conclusion of the project in order for the Respondent to retain the balance of funding $3,359.30. 61 A conciliation and directions hearing held before Bishop C on Monday, 22 October 2007 failed to resolve the claim and directions were issued in relation to a filing schedule. 62 In early December 2007 the Treasurer and Mr Fan met with the Applicant to find a solution to the problem. Agreement was reached that the Respondent would withdraw the termination letter and, in return, the Applicant would submit his petty cash report and project report. 63 On Friday, 14 December 2007, Mr Fan forwarded a report to the members of the Management Committee along with a motion that the proposed settlement be endorsed and a draft letter withdrawing the termination of the Applicant be approved. 64 Mr Huang wrote to the Applicant on Monday, 17 December 2007, and advised that a new Management Committee was elected on 16 December and met immediately after their election to consider a report from Mr Fan as to the meeting held with the Applicant earlier that month. The Applicant was informed that, on the basis of the assurance he had given to Mr Fan that both reports had been prepared, were in his possession and would be handed over simultaneously with the withdrawal of the termination letter, they approved the motion to withdraw the termination notice as "the key reason underlying the [termination] do not exist any more". 65 At a meeting held with the Applicant on Saturday, 22 December 2007, as a conciliatory gesture, Mr Fan and the Treasurer agreed to accept a petty cash report from the Applicant that indicated a total expenditure of $1003.41 to which they agreed to add $218.29 for the following items: Laser printer - $129; Colour MF - $88; and dinner on 27 June 2007 - $29. In other words, the Respondent was prepared to accept that the Applicant had accounted for an expenditure of $1251.70 out of the $1700 he had withdrawn. 66 Despite that conciliatory gesture, the unfair dismissal claim failed to be resolved. FINAL SUBMISSIONS 67 The Applicant maintained that his dismissal was in breach of the principle of procedural fairness. In that regard, he noted that, during cross-examination, both Mr Fan and Mr Huang had failed to: firstly, define the terms "conduct" and "misconduct"; secondly, provide any written record of a committee meeting at which a resolution was made to dismiss him; and, thirdly, tender his petty expenditure which, they contended, was in the Treasurer's possession. On that last point, the Applicant contended that the petty cash expenditure on the SGP project was immaterial to the current proceedings. 68 The Applicant further maintained that the dismissal letter was indicative of the lengths Messrs. Fan and Huang would go to "bully" their workers and cause monies to be deducted from their wages: firstly, both allegations against him, of misconduct and misusing petty cash, were untrue; secondly, the term "misconduct" was not defined in either his employment contract or any other documentation issued to him by the Respondent; thirdly, proof of the communication to him of such definition, either verbally or in writing, was not put before the Commission; fourthly, the Respondent was unclear in its evidence before the Commission as to whether it was alleged that he had spent $300 on food alone or $200 on food and $100 on transport to and from his home to the workplace; and finally, it was common practice for volunteers to receive payment for meals incurred while at work on the SGP project. He gave as an example the case of another SGP worker, Ms Jenny Gong, who had received reimbursement for her food, travel and telephone expenses. 69 The Applicant contended that the issue of the project report was another example of the Respondent's bullying tactics towards him: firstly, the SGP project concluded in June 2007 and the team had prepared and submitted its report in July 2007. The CRC project was to conclude in September 2007. He intended, as per his project work plan, to submit his report in October 2007; secondly, despite the absence of such a requirement in his contract, he had prepared an expense report and submitted it to the Treasurer on 16 August 2007, immediately upon a request being made of him. As the Respondent considered its format to be unacceptable, he had amended it in line with Ms Gong's format as was requested of him. The Respondent's allegation in the dismissal letter that he had ignored that request and refused to provide a response was untrue; thirdly, prior to submitting the amended report, he became aware that gossip and innuendo were circulating about him allegedly misappropriating project funding for his personal use. He contended that it was circulating via emails and other means to members of the Project Support Team and among the Respondent's members generally; fourthly, for that reason he had refused to submit the amended report until his email and telephone approaches to Mr Fan were responded to and the issue as to misappropriation was addressed. His requests had been ignored causing him to seek a meeting with the Management Committee. He was called to a meeting with the Project Support Team on 07 September only to find that the only persons present at the meeting were Messrs. Fan and Huang. He contended that Mr Fan repeatedly insulted him and refused to communicate with him on the issue; fifthly, not only did the gossip continue to circulate but his wages were stopped. Emails from Mr Fan to him were both intimidating and threatening; sixthly, Messrs Fan and Huang frustrated any intention by the Support Group to consider and respond to a written complaint he had lodged on 18 September by issuing him with the dismissal letter dated 24 September. Their action denied him the opportunity to both explain his actions and appeal to the Management Committee; finally, the complaint about non-provision of a report was merely an excuse to exercise the power to stop paying him wages and harass him as they do all their employees. 70 The Applicant submitted that his dismissal was contrary to the terms of his contract which stipulated that it must have the consensus of members of the Committee: firstly, he alleged that the dismissal occurred without any consultation with the Management Committee; secondly, if the dismissal was indeed approved by the members of the Management Committee, the Respondent failed to provide evidence of such consultation during the course of the hearing; thirdly, the Respondent failed to provide the Commission with evidence of the time when such communication occurred. In his view, it was more than likely that the communication to members of the Management Committee occurred after his dismissal in which case it would amount to a breach of procedural fairness; finally, the evidence before the Commission was that no committee meeting was held prior to the dismissal. It followed, therefore, that the purpose of his dismissal was to "attack the worker and deduct....remuneration". 71 The Applicant stated that he was seeking compensation in the sum of $3655.89 in outstanding wages and bonuses for the following reasons: firstly, he estimated that he should have earned 80% of the funding received for the project as per custom and practice; secondly, his salary should have increased when the initial funding for the project ($8745) increased by a further $1500; thirdly, he had only spent $1003.41 of the project fee of $1649. He was therefore entitled to claim the balance of the project fee; and fourthly, it was agreed by the Respondent that the balance of the project fees would be distributed to workers as a bonus at the conclusion of a project in recognition of their efforts. 72 The Applicant further maintained that he was owed an apology by the Respondent and that his dismissal should be withdrawn. 73 The Applicant sought compensation of $1 for the damage caused to his reputation amongst the predominantly Chinese community in Ashfield, his time and mental health as a direct result of his unfair dismissal. 74 The Applicant also sought legal costs of $374.70 against the Respondent made up of $448.50 IRC legal fees, $15 photocopying and $21.20 postal charges. 75 In conclusion, the Applicant submitted that his dismissal was a deliberate attempt by the Respondent to minimise remuneration to employees in order to re-direct the surplus funds from projects for its own use. He stated that the surplus should be returned to the funding body if it is to be denied to the workers. 76 The Respondent submitted that the Applicant was dismissed for misconduct having withdrawn $1700 in petty cash from the Treasurer on four different occasions during the first 5 months of his employment on the CRC project. The Applicant had misinformed the Treasurer that the withdrawals had the approval of the Project Manager. Not only did the Project Manager not have any knowledge of those withdrawals, only a portion of the withdrawals were spent on functions. Indeed, management had asked the Applicant to provide a report because the amounts withdrawn from petty cash were inconsistent with his output. 77 The Respondent submitted that the Applicant had consistently refused to provide petty cash and work progress reports despite numerous requests made during the period 30 July 2007 till when the last warning was issued on 15 September 2007. 78 The Respondent pointed out that the Applicant had previously been warned, on an earlier project, as to the need to provide an explanation on the expenditure of petty cash. On that occasion, he had failed to provide an explanation for the expenditure of $300. 79 The Respondent estimated that, to date, the Applicant had not accounted for $700 from both projects. That failure had resulted in creating a suspicion that he had something to hide, particularly in view of his continued refusal to provide reports and/or receipts for expenses incurred. 80 The Respondent pointed out that when the Applicant finally produced a petty cash report on the second day of the hearing, it was a very rough report without any clear explanation. The unspent cash and other property of the Respondent have remained in his possession. His submission that he had provided petty cash receipts to the Treasurer on 16 September was a "shameless lie". In fact, on that day, despite having $400 of unspent petty cash still in his possession, he had withdrawn a further $300. To date, the Applicant had not submitted a work report to the Management Committee. 81 The Respondent was accountable for public money and was responsible for ensuring that management of it included monitoring of its expenditure. In that regard, it insisted on its right to seek petty cash and progress reports from staff as it saw fit. The Applicant had withdrawn, and not accounted for, 19% of the total grant received from the State Government. The failure to account had created great difficulty for the Respondent in fulfilling its responsibility as Manager. 82 The Respondent pointed out that it was discovered that the Applicant's petty cash report for the first project was totally inadequate. It was "unclear", "very rough" and "misleading" in that reference was made to lunches with volunteers without specifying who they were; reference to taxi fares from his residence to work without specifying in what circumstances, and so on. The gross lack of explanation and his attitude to those who had assisted in sorting out his receipts resulted in the first warning letter being issued to him in which it was made clear that petty cash was to be used for work related expenses only. 83 The Respondent pointed out that the Applicant commenced employment in January 2007 on a part-time basis on the SGP project and mid-way through that project commenced on the CRC project. The SGP project was not completed until June 2007. The Respondent considered the Applicant as having continuity of employment and therefore his conduct on the second project should be measured in the context of his overall employment with the organisation. On that basis, the warning letter sent to him on 01 August in relation to the SGP project was a valid warning for his work performance on the second project. 84 The Respondent further pointed out that, despite the warning letter, when the Applicant provided a rough report and receipts on the second day of the hearing, there were at least 3 receipts relating to dining or drinking, and others that were considered inconsistent with the work he had been engaged to perform. He had even included a receipt dated 19 January 2007 when the project for which he was claiming that expense did not commence until March 2007. 85 The Respondent contended that no rumours had been spread about the Applicant. The emails forwarded to him on 18 August and the warning letter dated 15 September had been copied to the Support Group members, whom the Applicant trusted, as well as to the Chairman and the Treasurer. A draft of the dismissal letter had been forwarded to all Committee members prior to being forwarded to the Applicant. The Support Group members were people who had worked closely with the Applicant in a deliberate attempt to shield him. The contents of the three documents centred around the fact that petty cash had been withdrawn, a request that it be reported to the project management had not been met and that urgent action was required by the Applicant. The dismissal letter, he pointed out, obviously went one step further. 86 The Respondent submitted that the allegation contained in the 18 August email that the Applicant had used petty cash for dining was verified during the cross-examination of the Applicant and therefore was not a rumour. The allegation that he had withdrawn a further $300 from petty cash on 16 August was not challenged by the Applicant. The contents of the dismissal letter were also factual at the time the letter was issued. The Respondent, therefore, could neither accept nor understand why the Applicant failed to take their advice that in order to dispel the rumours he was alleging were circulating, he had to show evidence of his petty cash expenditure. 87 The Respondent denied that it had in any way intimidated the Applicant. On the contrary, the tone of the emails forwarded to him quite clearly spelt out the Respondent's position in calm and polite language. It was the Applicant's return emails that were personal attacks and contained "rude language". 88 The Respondent pointed out that the Applicant's rate of pay of $16.40 per hour for 12 hours per week was clearly spelt out in the contract and was equivalent to Grade 2 Year 3 classification in the Social and Community Services (State) Award. That rate was consistently paid to him even during the two weeks he had off in August 2007. 89 The Respondent submitted that it was aware that the Applicant commenced full-time employment with a tertiary institution on or about early August 2007 and that he had not performed any work for the Respondent since that time yet claimed his weekly wages up until 09 September 2007. The Respondent considered that the Applicant's claim beggared belief and could not understand the rationale or logic for it. 90 The Respondent believed that monetary compensation was the driving force behind the Applicant's claim and was also the reason why the Applicant declined all advances by the Respondent to resolve the claim on 22 December 2007. The Applicant had made several approaches to the Respondent to pay him a lump sum percentage of the total government grant. It appeared that, because those approaches were rejected, the Applicant decided to subsidise his wage with the use of petty cash to bring it up to 80% of the grant. 91 The Respondent submitted that the first warning letter forwarded to the Applicant dated 01 August 2007 clearly pointed out that the Respondent expected the Applicant to provide a petty cash report supported by receipts for all withdrawals. It also clearly pointed out that expenditure on dining and transport was considered improper use of such funds. When the Respondent became aware of the withdrawal of $1700, there were a number of telephone and email exchanges with the Applicant during which every effort made to have the Applicant comply with a request for a report on the subject failed. A meeting on 07 September also failed to resolve the impasse. A second warning letter, relating to petty cash expenditure on the CRC project, was sent to the Applicant on 15 September and, at the same time, telephone and email communication was made with the 10 members of the Management Committee canvassing their views on the possibility that the Applicant may have to be dismissed. Five members of that Committee endorsed such action. On 17 September, the Applicant's response was received rejecting the Respondent's demands resulting in the dismissal letter being forwarded effective 24 September, 4 days prior to the conclusion of the project. 92 The Respondent pointed out that it had made every effort to reconcile the claim to the point that it had agreed to reinstate the Applicant and to pay him to the end of the contract period even before it received the required reports from him. It had also offered to accept the reports without question and to provide him with $100 as a bonus payment. The Respondent had made the offer in the spirit of conciliation, wanting to settle the matter with dignity and in a manner suiting to the nature of the volunteer organisation and the community in which it operated. It was submitted that the Applicant had obviously interpreted the Respondent's actions as being a sign of weakness or timidness and rejected the offer in favour of higher monetary compensation. 93 In conclusion, the Respondent sought a dismissal of the application on the grounds that it is baseless, vexatious and frivolous. The Applicant already has a claim for underpayment of wages to the tune of $2164 lodged with the Office of Industrial Relations, NSW Department of Commerce. 94 In addition, the Respondent had examined the receipts provided on the second day of the hearing. It was prepared to accept that $623.71 was justifiably spent. It sought an Order requiring the Applicant to return the balance of $1076.29 rather than incur the expense of pursuing that sum in the Local Court. 95 Finally, the Respondent sought the sum of $500 as reimbursement for some of the costs incurred since the failed conciliation proceedings. 96 In response, the Applicant confirmed his previous submissions and stated that the warning letter of 01 August had been withdrawn by Mr Huang during a telephone conversation the following day. In any event, he had not been asked to further explain his petty cash expenses on the SGP project following that conversation. 97 The Applicant also pointed out that the Respondent had only provided proof of one committee member agreeing with the decision to dismiss him from employment. Yet the contract provided that the decision must be supported by two thirds of the attendees at a properly constituted management committee meeting. 98 The Applicant made allegations against the Respondent of misuse of petty cash and other more serious allegations, none of which had been supported by either oral or written evidence during the proceedings. 99 In conclusion, the Applicant sought, in addition to the above, an Order requiring the Respondent to submit its books to the Commission and to the public generally for auditing and, in particular, an investigation be conducted of the Respondent's 2007 account books and, if necessary previous years, to determine its policy in relation to the pattern of petty cash expenditure. CONSIDERATION 100 The Commission, as currently constituted, is required, pursuant to the Industrial Relations Act 1996, to take into account, if appropriate, the following matters in determining the Applicant's claim: Section 88 (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re- employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or e-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re- employment with the employer, and (f) such other matters as the Commission considers relevant. 101 The termination letter forwarded to the Applicant quite clearly outlined the reason for his dismissal - the alleged misuse of petty cash in the absence of justification for the spending. 102 There was no evidence before the Commission that the Applicant either sought or was refused reinstatement or re-employment. The Applicant acknowledged that the SGP project had concluded and that he had been engaged on a fixed term contract for the CRC project. Although he preferred to call the latter project "contract work", he nevertheless confirmed his awareness of the fact that the project had a finite conclusion date: Fan: Q. Why do you have this concept that the work was contract work? Yang: A. Well, the second job I have is a contract job because there's a time frame and there's funds for the project. As soon as this work is completed, then the work is done. Whereas for the first program I have, I can continuously do the job. 103 The date the project concluded was 28 September 2007, four days after he had been dismissed from employment. In the absence of any further offers of continuing employment, therefore, the Applicant would not have expected to continue in the employment of the Respondent beyond 28 September 2007. 104 In actual fact, following the conciliation proceedings before Bishop C, the parties met and the Respondent offered to reinstate the Applicant and pay him to the end of the contract, pay a bonus payment of $100 and accept his reports without questioning him on their contents. The Applicant had declined the offer holding out for greater monetary compensation. 105 I am satisfied, therefore, that the Applicant had been provided with a reason for his dismissal, that the reason had a basis in fact, that he had been provided with ample opportunity to provide an explanation for his behaviour, and that he failed to provide an acceptable defence for his behaviour. 106 The evidence before the Commission as to the amount of petty cash withdrawn by the Applicant was uncontradicted - both on the SGP project and the CRC project. The correspondence that passed between the parties from late July until his termination regarding the insistence by the Respondent that the Applicant account for the petty cash withdrawn was in evidence before the Commission. The Applicant had, despite countless opportunities to do so, consistently refused to voluntarily provide justification for his spending either during his term of employment on the CRC project, or during conciliation proceedings following his termination or during the arbitration proceedings. 107 A document titled "Proposed budget for community harmony project" indicated that his proposed budget fees for the project was $2,289. That document had been prepared by the Applicant. The Applicant stated that it was the only budget he had and was not aware as to whether or not that proposal had been accepted. As far as the Applicant was concerned, the $2,289 was project fees and was available for him to spend. He did not differentiate between project expenses and petty cash. Mr Fan had forwarded an email to the Applicant commenting on that proposed budget and therefore it should have been obvious to him that it had not been passed by the Management Committee. 108 Bishop C issued directions on 22 November 2007 giving the Applicant two weeks in which to prepare and tender his report. As at the first day of the hearing, the Respondent had not received a report from the Applicant justifying his petty cash expenditure of $1700. 109 The Applicant did not produce any receipts or any report in that regard during the first day of the arbitration proceedings. The Commission, as currently constituted, took great pains to explain to the Applicant, on a number of occasions, that the dismissal concerned his petty cash expenditure and his failure to account for how the monies withdrawn were spent. For that reason, he had to prove to the Commission that he could account for that spending. The Applicant continued to argue that the petty cash report had nothing to do with his dismissal and that he could see no relevance in having to justify his receipts. Finally, the Applicant stated that he would tender the petty cash expenditure report he had prepared in December the following day. It was made clear to him that the Commission was not prepared to go through each individual receipt to determine its purpose. He was to prepare a report with an explanation for each receipt: Commissioner: Q. ...... Has he understood what I clearly want from him tomorrow morning? A. Yes, I totally understand. 110 Despite spelling out precisely what was expected of the Applicant in the way of a petty cash report and providing examples of unacceptable reporting from the SGP project report, the Applicant provided a similar report on the second day of the hearing. The Commission made it clear to the Applicant that it was not prepared to go through a pile of receipts provided by the Applicant and it was up to him, armed with the knowledge that his dismissal centred around that major issue, to provide details for each of the receipts. 111 Some of the receipts he tendered were not very legible and the Applicant, despite directions given to him to the contrary, had left the originals at home. 112 The Applicant provided receipts for taxi fares, dining and other outputs not consistent with his role, including the alleged purchase of a laser printer for his home. No attempt had been made by the Applicant to justify those expenses as legitimate business expenses. The laser printer is still in the possession of the Applicant. A short adjournment was granted to allow the Applicant an opportunity to sort those receipts out. 113 Upon resumption, bearing in mind that the Respondent had not had an opportunity prior to that morning to consider those receipts, it was immediately picked up that the Applicant had included a receipt for expenses incurred at least three months prior to the commencement of that project. 114 When the Respondent had an opportunity to closely examine the receipts, it determined that of the $1076.29 withdrawn by the Applicant in petty cash expenses, he was only able to justify expenses totalling $623.71. 115 While both projects were running concurrently, the Applicant was issued with a letter of warning dated 01 August 2007 in relation to anomalies in the petty cash expenditure on the SGP project. The Applicant was aware that both projects were externally funded. Bearing in mind Mr Huang had to assist him in compiling a report from a pile of receipts he had provided the Treasurer and noting the contents of the warning letter, I am satisfied that sufficient warning was given to the Applicant that his method of justification of his petty cash expenditure was unacceptable to the Respondent. 116 The Applicant attempted to justify his failure to respond to Mr Fan's requests by insisting, throughout the hearing, that he was not aware that Mr Fan was Director of the CRC project. During cross-examination, Mr Yang claimed he was in the dark as to the role of Mr Fan: Well, Mr Fan's role has puzzled me, because at the beginning he says he's the support of the project, later on he says he's the coordinator. When he wants me to hand in the report to him, he says he's the director or the manager of the project and all of these really puzzle me. The email forwarded to the Applicant confirming his appointment to the CRC project, dated 18 March 2007 , quite clearly stipulated that, For management purposes, Mr Chun Wing Fan will take the role as project director in the next two month , in which he will help you with the work plan and give you direct support. He will also help to develop a steering committee that will support you from a professional perspective. Please keep contacting him via telephone and email and you will also organise face to face meetings with him in mutually convenient time. He will also negotiate your work hours and reporting format with you later this week.[emphasis added] 117 The Applicant had been given several opportunities to explain his petty cash expenditure and provide a work report in several emails forwarded to him in the period August - 24 September 2007, including a meeting on 09 September. In fact, in his email to the Applicant, dated 15 September, Mr Fan had stated quite clearly that the Applicant needed to address the issue, "otherwise you would be concerned about the consequences". Yet Mr Yang insisted that the Respondent had not made it clear that he would be dismissed. 118 The Applicant admitted during the proceedings that he had $400 in unspent petty cash still in his possession when he withdrew a further $300 from the Treasurer. 119 Mr Yang insisted that, apart from the warning letter relating to the SGP project, he had not received any warnings from the Respondent because Mr Fan used his personal email address to communicate with the Applicant. On that basis, he chose to consider the contents of the emails as mere threats and not warnings: Fan: Q. I just want to check, you know, because Mr Yang said he did not receive any warning from us. I just want to recap whether he got the emails or not, you know. Yang: A. Well, the first warning letter I received was about the first project, not the second project. Later on the emails sent out to my private email address, I could only take them as threats from Mr Fan. Q. So you did not regard that as a warning? A. I asked to communicate with Mr Fan repeatedly, but he refused to communicate with me. So I could only take the emails he sent out to me as threats, not warnings. 120 The Respondent submitted that it was aware that the Applicant had commenced full-time employment with a tertiary institution on or about early August 2007. Although that contention was not confirmed by the Applicant, he did not deny it either. Neither did he make a disclosure to the Commission, as was required of him, as to the remuneration he had received in such alternative employment. 121 Despite spelling out in detail exactly what was expected of the Applicant in the way of a petty cash report and providing examples from the previous report which the Respondent had rejected as unacceptable, the Applicant provided the same report on the second day of the hearing. The Commission made it clear to the Applicant that it was not prepared to go through a pile of receipts provided by the Applicant and it was up to him, armed with the knowledge that his dismissal centred around that major issue, to provide details for each of the receipts. 122 Irrespective of what deal was struck as to what was to happen to the balance of the monies left unspent at the conclusion of the project, it was not available to the Applicant to withdraw what he considered to be his share of the ultimate bonus payment as petty cash expenses during the life of the project. 123 I am satisfied, therefore, that warnings of unsatisfactory performance were given to the Applicant prior to his dismissal. 124 The Applicant had been provided with an opportunity for reinstatement but had declined that offer. DECISION 125 Having considered all of the evidence before the Commission, and observed the demeanour of the witnesses in the matter, I determine that the Applicant' s dismissal was not harsh, unjust or unreasonable. He has not made out a case for intervention by the Commission in his dismissal by the Respondent. Matter No. IRC 1951 of 2007 is hereby dismissed. 126 I have noted the submissions made by the parties in relation to costs. Both claims are rejected. I Tabbaa COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.