AMMA’s principal workplace relations consultant based in Hobart, Bill FitzGerald (pictured) reviews an unfair dismissal determination where the Fair Work Commission upheld the employer’s decision despite no warning being provided.
IN Georgia Sologinkin v Cosmetic Suppliers (31/03/2017) Senior Deputy President Hamberger found the dismissal of an employee due to the gravity of her sending an inappropriate email was not harsh, despite the fact she was not warned for misconduct and the dismissal had a profound impact on her.
This is a welcome decision reinforcing the proposition that when employees, particularly senior employees, breach policies and impact adversely on the reputation of the employer, this will be deemed as having lost trust and confidence and thus will override any other mitigating factor in a dismissal-related claim.
The case – ‘offensive’ emails lead to sacking
In this case, the applicant was an accounts manager who inadvertently sent a racist and offensive email meant for one of her friends to customers.
She attempted to recall the message but was unsuccessful and as a consequence one of the customers contacted the company and indicated they would no longer deal with them.
The employee had also sent an inappropriate email berating the customer service team as ‘totally incompetent’.
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.
Following the email incident, the company considered her explanations but determined the inappropriate comments made in the email had damaged the company’s business and reputation to such an extent that they could no longer maintain trust and confidence in her ongoing employment.
The employee had expressed her regret and embarrassment at sending the email, however the incident was a clear breach of the code of conduct and IT policy, and resulted in confidential information about clients being conveyed to other clients.
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.
Implications for employers
The outcome in this unfair dismissal case is welcome on a number of fronts.
Firstly, AMMA has noticed a concerning trend of Fair Work Commission decisions where the actions of the employer were found to be valid in justifiably dismissing an employee yet remedies of significant compensation or even reinstatement have been ordered. This decision has bucked that trend.
Secondly, it is welcome that the employer’s actions in this case were upheld despite no initial warning provided.
In many cases, the Fair Work Commission requires the giving of at least one warning for any dismissal to be defensible, especially against its ‘harshness test’. This is despite the Fair Work Act recognising that a warning is not required where there is serious and willful misconduct.
It’s important to note that managerial employees carry a higher onus not only to be aware of policies but to implicitly comply with them.
This decision reinforces the requirement particularly of managerial employees to always act in the best interest of their employer and if that does not occur and there is a breakdown in the trust and confidence, then typically the contract of employment can be ended.
AMMA recommends that where possible, warnings are given and provided in writing and preferably signed off by the employee.
We further recommend that members’ employment policies regularly be reviewed and reissued to employees, and the implications for breach are clearly stated and known.
AMMA’s workplace relations consultants can assist with employee dismissals, company policy and practice relating to dismissals and provide advice to employers. To discuss further, speak with an AMMA consultant today.