Unfair dismissal case confirms the importance of trust and confidence

By Michael Byrnes

13 Apr 2017

Where conduct is so egregious that it destroys the necessary trust and confidence in the employment relationship, the Commission will be more willing to find that dismissal is appropriate.

We all fear accidentally sending an email to the wrong person, especially if the recipient is the target of our frank, unfiltered thoughts. One employee with a long and previously unblemished employment record did just that.

Needless to say, it did not end well and the Fair Work Commission was disinclined to undo the damage. In considering the matter, the Commission affirmed the importance of trust and confidence in the employment relationship and that it can be destroyed by one act of sufficient gravity (Georgia Sologinkin v Cosmetic Suppliers Pty Ltd T/A Coty [2017] FWC 1838).

The offending email

Ms Sologinkin had worked for the employer since May 2000, initially as a junior sales representative and then Team Leader and State Sales Manager.  She had never been issued with any warnings for misconduct. 

On the morning of 9 November 2016, she sent an "intemperate and inappropriate" email to the Customer Services Team describing them as "totally incompetent".

It didn't, however, stop there; 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 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 no doubt panicked attempts to retrieve it. They 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 fallout didn't stop there.  The following day the client said he would no longer deal with any company represented by Ms Sologinkin; compounding this, another disparaged client did the same. 

The disciplinary process

The employer issued Ms Sologinkin with a letter requiring her to attend a disciplinary meeting on 14 November 2016.  The letter asserted that sending the email to the clients was highly inappropriate, a breach of the employer's Code of Conduct and could amount to serious misconduct. 

That meeting never happened. Ms Sologinkin was on work-related stress/sick leave and unfit for work until 18 November.

The employer asked for a written response 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:

  • the stress of her position;
  • treatment she had been receiving for post-traumatic stress disorder;
  • recent organisational changes in the employer;
  • lack of sleep;
  • the burden of handling complaints her colleagues had not adequately addressed;
  • the unintentional nature of the email; and
  • the failure of the employer's email filter to stop an email containing a profanity from being sent.

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

Why the Commission agreed with the employer

The Commission accepted that there was a valid reason for termination and that even though the employee had a long period of service with the employer, had an unblemished employment record and was contrite, 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 Commission 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 egregious that it destroys the necessary trust and confidence in the employment relationship, the Commission will be more willing to find that dismissal is an appropriate outcome. 

Of course, 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.

On a different, very practical note, it is also a salutary reminder to be careful and double-check the recipients list of any email that is sent.  It was accepted by the Commission (and reiterated a number of times in the decision) that the employee did not intend to send the email to clients.  Ultimately, however, it was, with very unfortunate results. 


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