A recent Fair Work Commission decision involving an unfair dismissal application highlighted the importance of a company having a Code of Conduct and an IT policy.

Senior Deputy President Hamberger determined that an employer was justified in dismissing a long serving employee for sending a “disparaging” and “highly offensive” email by accident to a client.

In the matter of Georgia Sologinkin v Cosmetic Suppliers Pty Ltd T/A Coty [2017] FWC 1838, Mrs Sologinkin, a former Accounts Manager of cosmetics giant Coty, was summarily dismissed for breaching Coty’s code of conduct and IT policy.

What triggered the dismissal?

Mrs Sologinkin accidentally copied in a client to an inappropriate email sent to a contractor who was also a friend which contained references to the clients’ ethnicity and national origin.

Later that day, the client attempted to telephone Ms Sologinkin after receiving the email. Ms Sologinkin did not answer the call however the call set alarm bells ringing. She checked her emails and realised that the client had been copied into the inappropriate email.

The client later advised the company that they would no longer do business with anyone from Coty. This triggered the employer to stand down Ms Sologinkin for alleged breach of the Code of Conduct and serious misconduct. She was requested to attend a disciplinary meeting 4 days later to discuss the email, and advised that she could bring a support person to that meeting.

Ms Sologinkin provided her responses to the allegations in writing, in some detail, and apologised for sending the email. She added that she had been suffering from post-traumatic stress disorder. This caused her to accidentally copy it to the client as a result of “recent issues with concentration and focus”, and that she had unsuccessfully tried to recall the email immediately afterwards.

How the Code of Conduct influenced the outcome

Despite Ms Sologinkin’s explanation as to why she sent the email, the Commission found that the employer was justified in summarily dismissing the employee irrespective of whether the client was copied in or not. The email contained comments that were entirely inappropriate and in breach of Coty’s code of conduct and its IT user conduct policy.

The policy specifically prohibited statements in any email that would embarrass either the sender or the company if disclosed to the public.

Senior Deputy President Hamberger found the company responded appropriately to the incident. They gave the employee a chance to respond by email when she said she was too unwell to attend the disciplinary meeting, and they took her explanation into account. They also paid her in lieu of notice because she did not mean to send clients the email.

Senior Deputy President Hamberger also noted her long period of service and apology. However, he noted that this did not outweigh the gravity of the misconduct so as to render the dismissal harsh.

If you are an employer who is concerned about email or internet use and the impact it may have on your business, please contact Chris Lowe on (02) 9331 0266 for a free-of-charge phone consultation and if you mention this article, we can provide you with a Code of Conduct and IT policy for no charge.

Likewise, if you are an employee who is concerned about an allegation of a breach of your employer’s policies or procedures, contact Chris Lowe on (02) 9331 0266 for a free-of-charge phone conference.

Chris Lowe

Chris Lowe

Chris focuses on complex litigation involving employment law matters for both employers and employees, particularly matters relating to disputes in respect of restraints of trade and breaches of contract. He also acts for both employers and employees in unfair dismissal matters and general protection claims with significant experience in appearing before the Fair Work Commission.
Chris Lowe