1
Fair Work Act 2009
s.394—Unfair dismissal
Deirdre McIntosh
v
Health Services Union-Victorian No. 1 Branch
(U2014/620)
COMMISSIONER BISSETT MELBOURNE, 10 SEPTEMBER 2014
Application for relief from unfair dismissal.
[1] Deirdre McIntosh was employed as an Organiser by the Health Services Union No. 1
Branch (HSU) in March 2013. Around November or December of 2013 it was agreed that she
would transfer into an Industrial Agreements Officer role. Ms Tracey Brown was employed to
take over her organising responsibilities. Ms McIntosh was to hand over her organising files
to Ms Brown. The HSU says that she failed to do so and that she breached a direction given to
her with respect to not providing a service to a non-member. As a consequence the HSU
dismissed Ms McIntosh on 27 February 2014. The reasons for the dismissal were confirmed
in a letter to Ms McIntosh on that day.
[2] Ms McIntosh has made an application to the Fair Work Commission alleging that she
was unfairly dismissed (s.394 of the Fair Work Act 2009).
[3] Prior to considering if Ms McIntosh was unfairly dismissed it is necessary to
determine if she engaged in the conduct which formed the reason for her dismissal. In order to
decide this matter it is necessary to determine:
1. Whether Ms McIntosh was given a direction to hand over files to Ms Brown;
2. If such a direction was given, whether she handed over all of the files by the
required date;
3. Whether Ms McIntosh breached a direction given to her by Mark Donohue.
[4] With the determination of these matters it can then be decided whether Ms McIntosh
was unfairly dismissed.
The files
[5] Ms McIntosh maintained both paper-based and electronic files. She says she rarely
referred to her paper-based files and generally kept in them documents handed to her. She
says she maintained ‘electronic files’ and that if she was given a document in hard copy she
would scan it in to her lap top and email it to herself.
[2014] FWC 5978
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 5978
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[6] Ms McIntosh’s electronic files are, in fact, a series of email folders. She says she had a
folder for each member or worksite she was dealing (or had dealt) with.
[7] Ms McIntosh did have a box of paper files she kept at home. It is not clear if these
replicated the electronic files she said she kept. She also had some additional paper files that
she had in a small suitcase on wheels.
Was Ms McIntosh given a direction to hand over the files?
[8] On Ms McIntosh’s evidence she was aware by the end of December 2013 that she was
required to hand over her organising work to Ms Brown by 6 January 20141 although it
appears she was permitted to keep two of her organising cases to see them through to
conclusion.
[9] Ms McIntosh says she was having difficulties meeting this deadline because of
problems with her laptop. Mr Donohue, the Operations Officer for the HSU, agreed that Ms
McIntosh should hand over the files to Ms Brown by 5.00pm on 9 January 2014. There is no
dispute that Mr Donohue had the authority to provide such a direction.
[10] On 9 January 2014, around mid afternoon, Ms McIntosh advised Mr Donohue that she
could not get the files handed over to Ms Brown by 5.00pm that day. On being told this Mr
Donohue asked Ms McIntosh to get the files handed over to Ms Brown the next morning. The
next day (10 January 2014) Mr Donohue had a further conversation with Ms McIntosh where
she said she would have the files handed over by the end of the day (which I take to be
5.00pm).
[11] I am satisfied that Ms McIntosh was given a direction to hand over her files to Ms
Brown by 6 January 2014. This date was extended to 9 January 2014 and then 10 January
2014. Ms McIntosh was aware of the direction given to her at all times.
Were all files handed over by the required date?
[12] Ms McIntosh says that she handed over her current paper files stored in the small
suitcase ‘at every opportunity’ both pre and post Christmas 2013.2 The files she had at home
she says she gave to Ms Brown after a meeting with Ms Diana Asmar, the Branch Secretary,
on 13 January 2014.3
[13] Ms McIntosh says that she had difficulties with her laptop computer between
30 December 2013 and 6 January 2014. Because of these difficulties she could not transfer
the electronic files to Ms Brown. When she went into work on 9 January 2014 she says she
started working on the transfer. She also says she was working on the handover document Mr
Donohue requested. At this time she says she had an enormous amount of emails to get
through with over 70 unopened emails from when her laptop was not working.4
[14] Ms McIntosh says that she sent emails addressed to herself ‘from administration’ to
Ms Brown as they came in. She says the emails could be new cases or inquires. She cannot
pinpoint with any precision when she did this.5
[15] On 10 January 2014 at about 11.00pm Ms McIntosh says she transferred ‘the files’ to
Ms Brown.6 When clarification was sought on this Ms McIntosh says that what she
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transferred to Ms Brown at this time was the handover document as requested by Mr
Donohue.7
[16] What Ms McIntosh did send to Ms Brown was two documents: the first a three page
document containing a list of cases consisting of the member’s name, phone number and brief
details of the issue involved; the second, one page long, containing two names and phone
numbers to ‘check on’8 (although this appears to replicate some information on the first
document). When pressed Ms McIntosh said that she considered the document she sent on
10 January 2014 to be ‘several electronic emails and files’ even though she only sent the two
documents.9
[17] Ms McIntosh also sent these two documents to Mr Donohue on 11 January 2014.
[18] Ms McIntosh’s evidence on when she provided the electronic files she held to
Ms Brown is unsatisfactory. She is vague in her recollections as to what she sent to Ms Brown
and when. Her evidence that she had handed over all of her electronic files by 10 January
2014 is inconsistent with her evidence that what she did provide to Ms Brown was two
documents which, collectively amounted to a list of 17 issues (and certainly doesn’t account
for anywhere near the 70 unopened emails she says she had on 9 January 2014). The only
matter Ms McIntosh could recall with any certainty that she did send to Ms Brown on
10 January 2014 is the two documents.
[19] Ms McIntosh also gives inconsistent evidence as to when on 10 January 2014 she sent
the two documents to Ms Brown. In written correspondence to Ms Asmar dated 11 February
2014,10 she says it was handed over ‘shortly after the time agreed’ yet in her oral evidence
says it was about 11.00pm. If the agreed time was 5.00pm, 11.00pm cannot be described as
‘shortly after’ this time.
[20] Ms McIntosh says that she did not hand over the box of files she had at home until
after a meeting with Ms Asmar on 13 January 2014.
[21] At a meeting with Ms Asmar, Ms Brown and Mr Donohue on 16 January 2014
Ms McIntosh was asked if she had handed over all of her files to Ms Brown. Ms Brown had
explained at that meeting that Ms McIntosh had told her she was not going to hand over all of
the files and that Ms Brown would have to ask about matters on a case by case basis.
[22] Ms McIntosh says that she had handed over all of her files except for some personal
files she carried around with her containing things like her employment contract, fax cover
sheets and the like. Following the meeting on 16 January 2014 she re-checked her bags and
says she found one file containing two separate matters, both of which were complete.
[23] The evidence of Ms McIntosh and Ms Brown suggests that, by this time, the
relationship between them had deteriorated to a substantial degree. Ms Brown truly believed
that files necessary for her to do her organising work effectively were being held back from
her by Ms McIntosh and Ms McIntosh considered she was being unfairly targeted when she
had done all that was asked of her.
[24] Ms McIntosh did not hand over all of the electronic files to Ms Brown by 6 January
2014. She did not hand that material over by the extended date of 9 January 2014 or 5.00pm
on 10 January 2014. She did send some material to Ms Brown late in the evening of
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10 January 2014 and this same material to Mr Donohue on 11 January 2014. These
documents cannot be equated to files (however they may have been kept). Ms McIntosh has
acknowledged that the she did not hand over the files she had at home until after 13 January
2014 and says she found a further file on 16 January 2014.
[25] I am therefore satisfied that she did not hand over all of the files by the deadline of
10 January 2014.
Did McIntosh breach a direction given to her by Mr Donohue?
[26] On 9 January 2014 Ms McIntosh had a conversation with Mr Donohue where she was
given an express direction by Mr Donohue not to provide assistance to a particular non-
member (who had recently resigned her membership of the HSU). This arose, she says, after
she had a follow up conversation with the non-member that day. Ms McIntosh says the non-
member indicated that she would consider re-joining if the union resolved her outstanding
issue.
[27] Ms McIntosh says that she told Ms Brown that the particular workplace was due for a
workplace meeting, that there were outstanding issues to address and a person might rejoin if
her issue was resolved. She says she told Ms Brown that she had a discussion with
Mr Donohue and had been told that she was not to help the non-member until she re-joined
the HSU.
[28] Ms Brown says that Ms McIntosh reported the conversation she had with Mr Donohue
to her but said they would organise a members’ meeting at the workplace, they would fix the
non-member’s issue and Mr Donohue would never know.
[29] In her written evidence (the letter to Ms Asmar responding to the allegations put to
her)11 Ms McIntosh says that she spoke to Ms Brown about resolving the issue for a long
standing member so as not to lose that person from membership permanently. She says she
suggested to Ms Brown this could be facilitated through a members’ meeting.
[30] I am satisfied that Ms McIntosh raised with Ms Brown the need to hold a members’
meeting at the particular workplace. Ms McIntosh does not dispute this. I am satisfied that Ms
McIntosh believed that the issue for the particular non-member could be resolved, or the
person would re-join the union, through a members’ meeting. Ms McIntosh says that she had
raised with Ms Brown prior to this date the need for a members’ meeting to be held at the a
particular site.12
[31] Ms McIntosh has been consistent in her evidence on this matter. I accept her evidence
contained in the letter to Ms Asmar. The letter was written closer to the date of the incident, it
is reasonable to assume it was written with thought and was reviewed before sent and for
these reasons should be preferred. She has maintained this evidence in proceedings. I prefer
the evidence of Ms McIntosh on this matter to that of Ms Brown.
[32] I am satisfied that Ms McIntosh believed that the issue for the non-member could be
resolved through a members’ meeting. In this respect she did seek to assist a non-member
against the direction of Mr Donohue although the members’ meeting might have achieved
what she was otherwise directed not to do. Whether this was the sole purpose of the meeting
she proposed is not clear but no evidence was given on this. There is sufficient evidence to
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conclude that non-members were often invited to meetings conducted by the HSU – reaching
out to non-members is therefore not contrary to the operations of the HSU.
[33] I am satisfied that Mr Donohue gave Ms McIntosh a specific direction. I am not
satisfied on the evidence before me that Ms McIntosh attempted to have Ms Brown do that
which she had been directed not to do.
Was Ms McIntosh unfairly dismissed?
[34] The Fair Work Act 2009 (the Act) sets out the statutory requirements for determining
if a person has been unfairly dismissed.
[35] I am satisfied that Ms McIntosh is protected from unfair dismissal (s.382 of the Act).
The dismissal did not arise from a redundancy and the Small Business Fair Dismissal Code
does not apply (s.385 (a), (c) & (d) of the Act).
[36] In determining if Ms McIntosh was unfairly dismissed it is necessary that I determine
if her dismissal was harsh, unjust or unreasonable within the meaning of the Act (s.885(b)).
The relevant considerations are set out in s.387 of the Act.
(a) was there a valid reason?
[37] For a reason to be valid it must be ‘sound, defensible or well founded’.13
[38] In this case Ms McIntosh was dismissed for failing to comply with a direction to
handover her organising files to Ms Brown and for breaching a specific direction of Mr
Donohue with respect to providing service to a non-member.
[39] I am not satisfied that Ms McIntosh breached a specific direction of Mr Donohue with
respect to providing assistance to a non-member.
[40] Whilst I am satisfied that Ms McIntosh failed to comply with a direction to handover
her files I do not consider a reason for dismissal based on this to be ‘sound, defensible or well
founded.’ I accept that the need to follow up with Ms McIntosh on the handover was irritating
and possibly adversely affected the capacity of Ms Brown to fully take on her role as
Organiser, but I consider it extreme to rely on this as a sound or defensible reason for
dismissing her from her employment. There is no evidence that suggests that the delay
adversely affected the capacity of the HSU to meet the needs of its members. Ms Brown did
not complain of having no work to do. Ms McIntosh was not counselled about the delay or
warned that a failure to comply with the direction could result in the termination of her
employment. Her delay in the handover warranted some rebuke but does not justify the
actions taken by the HSU.
[41] Whilst disobeying a lawful and reasonable direction may provide a valid reason for
dismissal I am not satisfied that, in this circumstance, it provides sufficient justification for
this dismissal. The infraction was minor.
[42] This is not to condone the conduct of Ms McIntosh at this time. Her failure to
complete the task asked of her was not acceptable.
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[43] The conduct of Ms McIntosh warranted some response from her employer. The
decision to dismiss her is out of proportion to the seriousness of her conduct and the effect of
her conduct. Her conduct does not provide a valid reason for her dismissal.
(b) Whether the person was notified of the reason
[44] Ms Asmar provided a letter to Ms McIntosh on 5 February 201414 in which a number
of allegations were put to Ms McIntosh. These included that she failed to handover her files as
directed to Ms Brown and that she breached a direction given by Mr Donohue by attempting
to have Ms Brown do what Ms McIntosh had been directed not to do.
[45] This letter was given to Ms McIntosh following a meeting between Ms McIntosh,
Ms Asmar and Ms Kitching of the HSU.
[46] I am therefore satisfied that Ms McIntosh was notified of the reason for her dismissal.
(c) an opportunity to respond
[47] Ms Asmar’s letter of 5 February 2014 invited Ms McIntosh to a meeting to discuss the
content of the letter on 11 February 2014.
[48] Ms McIntosh provided a written response to the allegations through her lawyer on
13 February 2014. It is not explained why she did not attend the meeting as invited on
11 February 2014.
[49] Ms McIntosh says that she was not given an opportunity to meet with Ms Asmar or
any other representative of the HSU. In correspondence to Ms Asmar on 19 February 2014
Ms McIntosh sought another meeting time. No party explained why this did not occur.
Despite this it is clear that Ms McIntosh did have an opportunity to meet with Ms Asmar on
11 February 2014 but did not take that opportunity.
[50] Section 387(c) of the Act does not require an opportunity to meet (although this would
generally be preferable) but rather an opportunity to respond to the reason for dismissal.
Ms McIntosh provided a lengthy response to the allegations against her. Whilst she says that
she was not given an opportunity to provide a ‘further’ response I am satisfied she was given
an opportunity to respond to the allegations prior to a decision being taken by Ms Asmar to
dismiss her from employment.
(d) support person
[51] Ms McIntosh was not denied an opportunity to have a support person with her in any
meetings to discuss the allegations against her.
(e) performance issues
[52] The dismissal did not relate to performance issues. This is therefore not a relevant
consideration.
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(f)( & (g) size of the employer’s enterprise
[53] Nothing was put to me that suggests there is any necessary consideration in
determining this matter in relation to the size of the employer.
(h) any other matters
[54] A number of further allegations of misconduct were put to Ms McIntosh in the letter
of 5 February 2014.15 They were not relied on as the reason for her dismissal. I do not
consider it necessary to further consider them. Whilst some of these further allegations were
subject to evidence, that evidence, generally, was inconclusive such that reliable findings as to
conduct could not be made.
Conclusion as to unfair dismissal
[55] There was no valid reason for the dismissal of Ms McIntosh. I find that her dismissal
was harsh, unjust or unreasonable. I therefore find that she was unfairly dismissed.
Remedy
[56] Ms McIntosh seeks reinstatement to her position with the HSU. She does not see an
Intervention Order against her in relation to Ms Brown as an impediment to such
reinstatement.
[57] The HSU is opposed to reinstatement. It says that the evidence establishes that Ms
McIntosh cannot be trusted to carry out directions given to her by, or deal honestly with,
senior staff of the HSU. It says that she has posted comments on Facebook16 and taken part in
organising a protest against the current leadership of the HSU.17
[58] The HSU also says that there would be practical difficulties in having Ms McIntosh
reinstated. There is currently an Intervention Order restricting Ms McIntosh from having
contact with Ms Brown. The Order, amongst other things, prohibits Ms McIntosh from
contacting or communicating with Ms Brown by any means or locating, following or keeping
her under surveillance or publishing on the internet, by email or other electronic
communication any material about Ms Brown. The only exception is that Ms McIntosh can
remain within 5 metres of Ms Brown when necessary for ‘political, union or employment
purposes.’ Ms Brown remains employed by the HSU.
[59] Ms McIntosh acknowledges that she is standing for election in the forthcoming HSU
elections. Given her role in organising a rally against the current leadership, including Ms
Asmar, it can be inferred she is running in opposition to Ms Asmar or those who support her.
Standing against Ms Asmar or her supporters in an election to determine who should manage
and lead the union does not seem to me to be an act of good faith on Ms McIntosh’s part. Ms
McIntosh has also made a Facebook post and assisted in organising a rally directed against
Ms Asmar.
[60] Given all that has occurred in the period leading up to her dismissal and since her
dismissal it is inconceivable to me that Ms McIntosh could claim that the HSU has no basis to
say it has lost trust and confidence in her. Ms McIntosh has failed to follow lawful and
reasonable directions. Her recent actions in the Facebook post and rally may be legitimate
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political tactics but they can have an effect beyond the political where an employment
relationship is involved.
[61] In these circumstances it is not difficult to accept that the HSU has lost trust and
confidence in Ms McIntosh.
[62] A claim for loss of trust and confidence by an employer in a person seeking
reinstatement is not unusual and should not be accepted on face value. In this case I am
satisfied that there are real grounds on which the HSU, as an employer, can claim a loss of
trust and confidence in Ms McIntosh.
[63] Given all the circumstances both prior to and after her dismissal, I am satisfied that
reinstatement of Ms McIntosh is not appropriate.
[64] In determining compensation I have taken into account the requirements in s.392(2) of
the Act.
[65] I am satisfied that the order I shall make shall not have an adverse impact on the
viability of the HSU (s.392(2)(a)).
[66] Ms McIntosh had been employed for 12 months at the time she was dismissed
(s.392(2)(b)).
[67] Ms McIntosh seemed to be having difficulty in coping with the demands of the
organiser position - this is part of the reason she transferred into the industrial agreements
position. In the new role she did indicate a need for training suggesting a lack of confidence
(not unusual in a new position) in her ability to do this job. Her relationship with her
colleagues appeared fractious. In these circumstances I am not convinced that she would have
remained in employment with the HSU for much longer had she not been dismissed. I find
that she would have remained in employment for no more than a further 3 months (13 weeks)
from the date of her dismissal.
[68] Ms McIntosh’s employment was terminated on 27 February 2014. Had she remained
employed with the HSU she would have received $17,943 (38 hours per week at
$36.3219/hour) (s.392(2)(c)). She received four week’s pay in lieu of notice ($5,520.92) at the
time of her dismissal.
[69] Ms McIntosh gained employment at Peninsular Health (her employer prior to working
for the HSU) commencing 31 March 2014. I am satisfied that she made attempts to mitigate
her loss (s.392(2)(d)). She is working 40 hours per week and being paid $20.74/hour. Ms
McIntosh has earned $6,636.80 from her employment with Peninsular Health for the period
31 March 2014 - 27 May 2015 (the period for which she would have remained employed at
the HSU had she not been dismissed) (s.392(2)(e)).
[70] I do not see the need to reduce the amount Ms McIntosh would have earned for
contingencies. The likely period of employment for which compensation is to be awarded has
past. There is no evidence that Ms McIntosh was unavailable or unable or did not work in that
period.
[71] Ms McIntosh’s lost remuneration is therefore $5,785.28 (gross) plus superannuation.
[2014] FWC 5978
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[72] Ms McIntosh’s misconduct in not following directions given to her did contribute to
the reason for her dismissal. I consider that the amount of compensation I intend to award
should only be reduced by an amount of 10% for this reason. (s.392(3)).
[73] I have not included an amount for shock, humiliation or distress in the amount I intend
to order.
[74] There are no other matters to take into account.
Orders
[75] I will issue an order in conjunction with this decision requiring the HSU to pay an
amount of compensation to Ms McIntosh of $5,206.75 gross, plus superannuation within 14
days of the issue of the order.
[76] The superannuation amount is to be paid into Ms McIntosh’s superannuation fund. Ms
McIntosh is to advise the HSU within seven days of the order the details of her
superannuation fund and bank account in order to facilitate payment.
COMMISSIONER
Appearances:
M. Addison of Maddison & Associates on behalf of the Applicant.
A. Duffy of Counsel with M. McIver of Holding Redlich for the Respondent.
Hearing details:
2014.
Melbourne:
July 9, 10, and 17.
Final written submissions:
Applicant: 5 August 2014.
Respondent: 15 August 2014.
1 Transcript PN501.
2 Transcript PN176.
3 Transcript PN526-7.
4 Transcript PN228.
5 Transcript PN555.
6 Transcript PN229.
7 Transcript PN590.
8 Exhibit R6, attachments 1 & 2.
THE SEAL OF ISSION THE FAIR WORK
[2014] FWC 5978
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9 Transcript PN585-90.
10 Exhibit A1, attachment DJM 3.
11 Exhibit A1, attachment DJM 3.
12 Transcript PN619.
13 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
14 Exhibit A1, attachment DJM 2.
15 Exhibit A1, attachment DJM2.
16 Exhibit R4, attachment 5.
17 Exhibit R4, attachment 7.
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