In brief: At times, apologies and remorse can be considered too little, too late. When an employee’s thoughtless actions go so far as to impact negatively a company’s reputation and breach a Code of Conduct, then dismissal may be deemed fair and reasonable.
In a recent case where an employee sent an offensive and damaging email about the employer’s clients, the Fair Work Commission (FWC) has ruled in favour of the employer and affirmed the employer’s decisions to terminate the employee’s employment. This case serves as a solid reminder to employers to have stringent email and IT policies, and make employees aware of the standards of conduct that are expected of them.
What you need to know:
- In considering whether a dismissal is unfair, the FWC must take into consideration a variety of factors, including whether there was a valid reason for an employee’s dismissal which relates to the employee’s capacity or conduct and ensure that “a fair go all round is accorded to both the employer and employee concerned”.
- In this case[i], the dismissal was held to be fair even though the employee was long serving and not subject to any prior formal warning.
In the case of Georgia Sologinkin v Cosmetic Suppliers Pty Ltd t/as Coty  FWC1838, the employee was a Key Account Manager who had been employed for 16 years and worked her way up from being a junior Sales Representative to Team Leader and later, State Sales Manager.
In August 2015, the employee had been placed on an informal performance improvement plan due to failure to meet KPI’s in relation to sales and poor time management. However, by the end of 2015, the employee’s performance had improved and she was no longer on an informal performance improvement plan.
On the morning of 9 November 2016 the employee sent an intemperate and inappropriate email to her employer’s customer services team berating them as “totally incompetent”. On the same day, the employee composed an email to a friend who had commenced working as a contractor to the employer. In this email, the employee made a number of disparaging – and, in at least one instance, highly offensive – comments about some of the employer’s clients that her friend would be dealing with. The email included the email addresses of the clients. By accident, the email was sent not only to the friend, but also to the clients about whom the comments had been made!
Process for termination
On 10 November 2016, the employee was informed that she was temporarily suspended and not to contact any clients pending a disciplinary meeting the following Monday, 14 November 2016. The letter indicated that sending the email to the clients was highly inappropriate, constituted a breach of the Code of Conduct and could amount to serious misconduct warranting, a warning or the termination of her employment. The employee was to be given an opportunity to provide any explanations or additional information and was invited to bring a support person to the meeting.
That day, the employee advised that she was on work-related stress/sick leave and that she would be unable to attend the meeting. She had a medical certificate that she was unfit for work until the end of the week.
The employer responded by stating that given the very serious nature of the incident and its impact on the employer’s reputation – the matter needed to be resolved as soon as possible and the employee was requested to provide a written response by the end of the following day.
The employee provided a detailed response confirming that the incident was not intentional and acknowledged that it was deeply embarrassing and had been a terrible mistake.
Termination of employment
The employee’s managers considered the employee’s explanation and terminated her employment with notice by making a payment in lieu of notice. They took into account:
- the inappropriate comments made in the email which were in breach of the Code of Conduct;
- that confidential information about clients was conveyed to other clients and damaged the employer’s business and reputation;
- the employee’s explanation and her expression of regret, and the fact that she had inadvertently copied the clients into the email.
The FWC held that the employer was justified in terminating the employee’s employment on the ground that the employment relationship was so damaged that the employer could no longer maintain trust and confidence in the employee.
The email contained a number of derogatory and offensive comments about the employer’s clients. Even if these had not been sent to the clients themselves, these comments would have been entirely inappropriate, especially from someone in the employee’s position, whose job it was to manage relations with key customers. The comments were also in breach of the Code of Conduct and the IT User Conduct Policy, which specifically prohibited users of the email system from including statements in an email that would be embarrassing to either the user and/or the receiver if they were disclosed to the public.
The FWC accepted that the email was sent to clients by mistake. However, whatever the explanation as to how that happened, the ultimate responsibility must be borne by the employee. The email not only had the potential to, but clearly did in fact, damage the employer’s reputation and its relations with its clients.
The FWC was also satisfied that the employee was given an opportunity to respond to the reasons for her termination even though the planned meeting did not proceed, and the employee was not subject to any prior warning and had apologised for her behaviour.
Whilst each case will turn on its facts, the decision is significant for the fact that one significant issue of misconduct may be sufficient to justify termination even where the employee is remorseful and not subject to any other form of performance warning.
It is also noteworthy that the employer was able to effect a reasonable process in the dismissal, even though the employee was absent on sick leave and did not attend the scheduled disciplinary meeting in person.
[i] Georgia Sologinkin v Cosmetic Suppliers Pty Ltd t/as Coty  FWC1838