Email misuse dismissal fair

Email misuse dismissal fair – Email and misconduct – unfair dismissal case confirms the importance of trust and confidence

Where conduct is so poor that it destroys the trust and confidence essential in an employment relationship, the FWC will find that dismissal is not unfair.

The case of Georgia Sologinkin v Cosmetic Suppliers Pty Ltd T/A Coty [2017] FWC 1838 serves as a warning about:

  • Sending an email to the wrong person.
  • Making disparaging or offensive comments in emails
  • Being careful when wording and sending emails.

Accidentally sending an email to the wrong person is not an uncommon event, especially if the recipient is the email is the target of comments best left unsaid or unfiltered thoughts.

Ms Sologinkin employee with a long and previously unblemished employment record did just that and it did not end well

Senior Deputy President Hamberger found against Ms Sologinkin’s unfair dismissal application. In considering the matter, the Commissioner affirmed the importance of trust and confidence in the employment relationship and that it can be destroyed by one act of sufficient gravity

The email

Ms Sologinkin worked for Cosmetic Suppliers since May 2000, as a junior sales representative then Team Leader and then State Sales Manager.  She had never been subject to any issues of misconduct.

On 9 November 2016, she sent an email described as “intemperate and inappropriate” to the Customer Services Team describing them as “totally incompetent”.

As set out in the judgment:

“On the same day, the applicant composed an email to a friend of hers who had commenced working as a contractor for the respondent.  In this email, she made a number of disparaging ‒ and, in at least one case, highly offensive ‒ comments about some of the clients her friend would be dealing with.  This included a reference to one of the clients’ ethnicity and national origin.  The email included the email addresses of the clients.”

As she had intended, the email was sent to her friend and colleague.  Unfortunately, it was also accidentally sent to the clients.  Once she became aware she had sent the email to the clients, she made attempts to retrieve it, her attempts failed.

Upon receiving the email, one of the named clients tried, without success, to contact the employee by telephone.  He then rang the sales director and subsequently sent an email about the matter which said there “needs to be a consequence to this stupidity, await your advice”. 

The following day the client stated that they would no longer deal with any company represented by Ms Sologinkin; adding to this, another disparaged client did the same.

The employer issued a letter to Ms Sologinkin requiring her to attend a disciplinary meeting on 14 November 2016.  The letter advised Ms Sologinkin that sending the email to the clients was highly inappropriate and a breach of the employer’s Code of Conduct and furthermore could amount to serious misconduct. That meeting did not occur as Ms Sologinkin was on work-related stress/sick leave and unfit for work until 18 November.

The employer requested a written response from Ms Sologinkin to the allegations in the letter by close of business 15 November 2016.  To this Ms Sologinkin responded with a detailed email that cited a number of matters, including that her reasons for the mistake include that she had not slept well before the day of the email. She further said she was distracted, having had two others emails open at the same time and was handling complaints about the customer service team’s inability to perform their duties.

She conceded she had found it difficult to cope with her role ‘for some time’ and had been receiving medical treatment for post-traumatic stress disorder since 2015.

In further background, the employee had been placed on an informal performance improvement plan due to failure to meet key performance indicators for sales, and poor time management, which she said was due to a lack of management support and organisational changes. By the end of 2015 her performance had improved and she was no longer on a plan.

The employer considered her explanation but decided to dismiss her, concluding that the seriousness of the conduct was such that the trust and confidence necessary in an employment relationship had been lost.

SDP Hamberger found in at least one case the employee made ‘highly offensive’ remarks. One remark included a reference to a client’s ethnicity and national origin. SDP Hamberger accepted that the email was sent by mistake but given she occupied a management position she must bear the ultimate responsibility for her actions. He found the company had a valid reason to terminate and had conducted a fair investigation into the matter

SDP Hamberger accepted that there was a valid reason for termination and that even though the employee had;

  • a lengthy period of service with the employer,
  • an unblemished employment record
  • was contrite,

Overall the gravity of this misconduct, coming from someone whose job was to “manage relations with key customers”, was such that dismissal was not harsh.

The Commissioner held:

“…whatever the explanation as to how it happened, the ultimate responsibility must be borne by the applicant.  The email not only had the potential to but clearly did in fact damage the respondent’s reputation and its relations with its clients.” 

Not all mistakes destroy trust and confidence

Termination of employment is never a step to be taken lightly by an employer.  A longstanding employee with an unblemished employment record will, in many circumstances, be able to successfully argue that a termination was harsh and that other disciplinary outcomes falling short of termination should have been actively considered and applied.

However, where conduct is so damaging to the business and the trust and confidence necessary in an employment relationship, the Commission will be more willing to find that dismissal was not unfair and an appropriate outcome.

Every unfair dismissal case turns on its facts; it is entirely possible that if the employee was not in a key sales role, where relationships with clients are pivotal, that the outcome may have been different.

It is also an important and timely reminder to be careful and double-check the recipients list of any email that is sent.  And the tone of the email – if in doubt don’t press send

Link to the case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1838.htm

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
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The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

 

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