by Sid Sidhu and Troy Wild, NRA Legal
Georgia Sologinkin v Cosmetic Suppliers Pty Ltd T/A Coty  FWC 1838
An employee who made highly offensive comments about numerous clients of the company was found to have been fairly dismissed by the Fair Work Commission (FWC), earlier last month.
The accounts manager, who had been with the company for over 15 years, was summarily dismissed following an abusive email she had sent to the company’s clients. The email was accepted as a mistake by the FWC and was only intended for a friend of the employee, who happened to be engaged as a contractor. Nevertheless, the comments made went as far as making reference to one of the clients’ ethnicity and was found to be in breach of the company’s code of conduct and IT policy.
On receipt of the email, one client contacted the employer calling for a “consequence to this stupidity”. He indicated that he would no longer be dealing with any company represented by the employee and felt personally offended by the comments that were made.
In ensuring procedural fairness, the employer arranged a meeting to allow the employee the opportunity to explain her actions. Here, the accounts manager conceded that she had been struggling with her role since receiving treatment for post-traumatic stress disorder in 2015. She apologised for sending the email, which she attributed to issues with concentration and focus, and demonstrated her attempts to recall the email.
However, despite no prior warnings in relation to misconduct, her employment was terminated on the basis that the employer had lost confidence and trust in her as an employee.
According to Senior Deputy President Jonathan Hamberger, “even if [the offensive comments] had not been sent to the clients themselves, these comments would have been entirely inappropriate – especially from someone in the applicant’s position, whose job it was to manage relations with key customers.” In his view, the fact that the email was sent and received by the clients “greatly multiplied the gravity of the misconduct.” It also caused some obvious damage to Coty’s reputation and its ongoing relationship with clients.
As such, the FWC held that the company had taken appropriate steps in responding to the incident. The employee’s impeccable employment history and long period of service did not outweigh her misconduct and therefore her dismissal could not be construed as harsh or unfair.
The full decision can be found here.
Employers are reminded of the benefits of workplace policies and procedures. The NRA can assist in drafting these vital documents which can specifically prohibit an employee from sending out “embarrassing” emails.
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A Code of Conduct can be used to clarify the key values of a business and standards of behaviour expected amongst staff when performing their duties. It is to be read in conjunction with other policies and procedures and may be relied on to discipline employees who are not meeting their expectations.
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Performance issues must be managed carefully in order to avoid an unfair dismissal claim. Written warnings are fundamental to the process of performance management and must be issued successively before taking steps to terminate an employee. This suite of letters will offer greater protection to employers, provided they are issued correctly and in line with principles of procedural fairness.
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