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15 May 2017 Common sense prevails in an unfair dismissal case

By Warwick Ryan, Partner

I often write about whacky decisions of the Fair Work Commission which demonstrate the extraordinary lengths employers have to go to, to avoid falling foul of the maze of employment law rules and regulations.

However, the recent decision in Georgia Sologinkin v Cosmetic Suppliers Pty Ltd T/A Coy is a victory for common sense.

The case concerned the dismissal of Ms Sologinkin, who was employed in the role of an Accounts Manager and responsible for managing key customer accounts. She had been employed in the business since 2000. On 9 November 2016 she had, what can only be described as a really bad day at work, when she accidentally sent an email containing derogatory comments about her clients (including derogatory references to one client's ethnicity and national origin) to the clients in question, rather than to a friend.

Unsurprisingly, the email prompted complaints from a number of clients.

As a result, her employer gave her a written invitation to a disciplinary meeting to discuss the incident. The letter explained that her conduct could amount to serious misconduct and could result in her dismissal. She was invited to bring a support person with her.

However, the disciplinary meeting did not go ahead as Ms Sologinkin commenced a period of personal leave due to work-related stress.

The employer therefore wrote to the employee and invited her, instead, to provide a written explanation of the incident, which the employee did. Her response included that she had been under a great deal of stress and had not intended to send the email to the clients.

Having considered all the points the employee raised, the employer determined that, having regard to the gravity of the conduct, it could no longer continue to employ Ms Sologinkin and she was dismissed. She subsequently brought a claim for unfair dismissal in the Fair Work Commission.

In dismissing her application Senior Deputy President Hamberger made the following comments: "I am satisfied that the respondent had a valid reason for the termination of the applicant's employment. The email contained a number of derogatory and offensive comments about the respondent'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 applicant's position, whose job it was to manage relations with key customers."

The decision illustrates a number of important points. Firstly, employers will be viewed favourably by the Fair Work Commission where they follow a thorough disciplinary process (ie. a written invitation to a disciplinary meeting, notification of right to a support person, an opportunity for the employee to respond to allegations before a decision taken to dismiss); secondly, the world does not need to stop turning just because an employee is on sick leave – written communications can suffice – although not if the individual is very unwell either psychologically or physically; thirdly, even where an employee has a long period of service and an unblemished employment record, dismissal can be justified where the misconduct involved is sufficiently serious.

The other key lesson? Always double-check before pressing "send"!

Warwick Ryan, Partner  |  Phone: +61 2 9233 5544  |  Email: wpr@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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