A recent Fair Work Commission (‘FWC’) decision to uphold the termination of a key account manager’s employment is a timely reminder to check that your workplace policies are up-to-date and sufficiently detailed to ensure any breach can be clearly identified and communicated.
The FWC held that Cosmetic Suppliers Pty Ltd T/A Coty (‘the Respondent’) did not unfairly dismiss Ms Georgina Sologinkin (‘the Applicant’) after it had “lost trust and confidence” in her because she mistakenly sent an inappropriate email to the Respondent’s clients. The email contained derogatory and offensive comments about the clients, including “disparaging” comments about one client’s ethnicity and national origin. The Applicant’s inappropriate email resulted in the Respondent losing the clients’ business.
Following the incident, the Respondent issued the Applicant with a show cause letter inviting her to attend a disciplinary meeting and specifying its concerns with the Applicant’s conduct in sending the email. In response, the Applicant claimed she had a lack of management support in the face of organisational change, lack of sleep, stress, and a heavy workload dealing with complaints that she attributed to the customer service team.
Despite considering the Applicant’s explanations and acknowledging that the email in question had been accidentally distributed to clients, the Respondent determined that the Applicant had breached its Code of Conduct and IT User Conduct Policy (which expressly prohibited use of email to make statements that would be “embarrassing” to the Respondent) and accordingly terminated the Applicant’s employment paying in lieu of notice.
The FWC dismissed the unfair dismissal application, holding that the Respondent had a valid reason for the termination and afforded the Applicant a procedurally fair process that allowed her to provide a “detailed and cogent response” which the Respondent then considered when making its decision.
In determining whether the termination was “harsh, unjust or unreasonable” within the meaning of the Fair Work Act 2009 (Cth), Senior Deputy President Hamberger also considered the fact that the Applicant had apologised and had a lengthy unblemished record of service with the Respondent. Despite this, the Senior Deputy President held that the Applicant’s actions caused damage to the Respondent’s reputation, constituted a breach of workplace policies, and held that any mitigating factors did not “outweigh the gravity of the misconduct so as to render the dismissal harsh.“
If you have any questions about unfair dismissal claims, please do not hesitate to contact Nick Stevens, Megan Cant or Jane Murray.