Com­mon sense pre­vails in an unfair dis­missal case

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”!