| FWC 1838|
|FAIR WORK COMMISSION|
Fair Work Act 2009
Cosmetic Suppliers Pty Ltd T/A Coty
SENIOR DEPUTY PRESIDENT HAMBERGER
SYDNEY, 31 MARCH 2017
Application for an unfair dismissal remedy - valid reason found - procedural fairness afforded - dismissal not harsh, unjust or unreasonable - application dismissed.
 On 6 December 2016, Mrs Georgia Sologinkin (the applicant) applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against her former employer, Cosmetic Suppliers Pty Ltd T/A Coty (the respondent).
 The matter was heard today, 31 March 2017. Mrs Sologinkin represented herself. Mr Woolard, solicitor, appeared for the respondent with permission.
 Mrs Sologinkin gave evidence on her own behalf and was cross-examined on that evidence. She also tendered a witness statement of her neighbour, Mr Colin Thompson. Mr Thompson was not required for cross examination.
 The respondent tendered evidence from its human resources director, Ms Sally Stemi. Mrs Sologinkin chose not to cross-examine Ms Stemi.
 I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision.
 On 16 November 2016, the respondent terminated the applicant’s employment on the grounds that it had lost confidence and trust in her as an employee.
 At the time of her dismissal, the applicant was employed by the respondent as a Key Accounts Manager. She had been in this role for a number of years. In this position she was, among other things, responsible for managing key customer accounts – including responsibility for oversight of the provision of customer service to these clients.
 The applicant had commenced work for a predecessor of the respondent in May 2000 as a junior sales representative, and had worked her way up to team leader and State Sales Manager. She had never been issued with any warnings for misconduct during the course of her employment.
 The applicant conceded that she had been having difficulty coping with her role for some time, and had been receiving treatment for Post-Traumatic Stress Disorder since 2015. In August 2015, the applicant had been placed on an informal performance improvement plan due to failure to meet key performance indicators in relation to sales, and poor time management. By the end of 2015, the applicant’s performance had improved and she was no longer on an informal performance improvement plan.
 On the morning of 9 November 2016, the applicant sent what can only be described as an intemperate and inappropriate email to the respondent’s customer services team berating them as ‘totally incompetent’.
 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.
 Somehow, the email was sent not only to the friend, but also to the clients about whom the comments had been made. I am satisfied that the applicant did not intend that the clients would receive the email.
 Later that afternoon, one of the clients (Andrew Lyons) rang the applicant. The applicant did not answer the call – however, the call set alarm bells ringing and she checked her emails. It became apparent that the email containing the comments had been sent to the clients about whom the comments had been made. The applicant unsuccessfully tried to retrieve the email.
 Mr Lyons also rang the respondent’s sales director, Stephen Keating. Mr Lyons followed this up with an email that said, amongst other things, there ‘needs to be a consequence to this stupidity, await your advice’. The next day, Mr Lyons indicated that he would not deal with any company represented by the applicant.
 Another client also contacted the respondent and indicated that it did not wish to work with the applicant.
 On 10 November 2016, Mr Keating telephoned the applicant and informed her that she would be issued with a letter to attend a disciplinary meeting on Monday, 14 November 2016, and that in the interim, she was not to perform any duties or contact any clients. The letter indicated that sending the email to the clients was highly inappropriate, constituted a breach of the Code of Conduct and could amount to serious misconduct. She was invited to bring a support person to the meeting.
 The applicant was advised that at the meeting, they would discuss the contents of the email, the impact that it had had on the business and the applicant’s explanation as to her intentions in sending the email. She would be given an opportunity to provide the respondent with any explanations or additional information in relation to her circumstances that the respondent might be unaware of in relation to the incident.
 The applicant was advised that the respondent would decide about any appropriate disciplinary action after having considered the applicant’s response. Disciplinary action could include a warning or the termination of the applicant’s employment.
 The applicant emailed Ms Stemi that day, advising that she was on work-related stress/sick leave and that she would be unable to attend the meeting scheduled for 14 November 2016. Her doctor had assessed that she was unfit for work until 18 November 2016.
 On 14 November 2016, Ms Stemi wrote to the applicant stating that. given the very serious nature of the incident and its impact on the respondent’s reputation, they would like to resolve the matter as soon as possible.
 Ms Stemi asked for a written response by close of business 15 November 2016 to the question as to whether it was the applicant’s intention to copy the respondent’s clients into the email on 9 November 2016. Ms Stemi also invited the applicant to provide any additional explanations or information relevant to the respondent’s consideration of appropriate action to take in relation to the incident.
 The applicant responded with a detailed two-page email on 15 November 2016. In her response, the applicant referred to her previous difficulties in coping with the stress of her position and the medical treatment she had been receiving for PTSD. She mentioned that while things had improved,
‘recently there has been drastic changes that have negatively affected my income and work related stress.’
 The applicant referred to a lack of support from her management through recent organisational changes that had affected her ability to service her clients and achieve her sales targets. She also referred to the sale of a particular store to the company whose CEO was the client about whom she had made the most disparaging comments in her 9 November 2016 email, which she said had shaken her up a great deal as it meant her sales figures would drop dramatically.
 On the day in question (that is, 9 November 2016), the applicant said she knew she wasn’t handling things well, she wasn’t sleeping well and she was handling a number of complaints directly related to what she saw as the inability of Customer Service to perform their duties, leaving her to take the time to advise them of issues with service and simple things that had been missed.
 In relation to the email sent to the clients she said the following:
‘The incident occurred because I had 2 email windows open one relating to a complaint and another relating to email details for clients that Sarah Rhodes had asked me for previously, and please keep in mind we associate outside of work and have been friends for some time. This is why I made the decision to help her out and provide the email addresses she asked for, even though I now regret the decision.
These clients do not exist in our address book so to bring them up I usually type them into the CC field of the email and copy them, however on this occasion I had two emails open and planned to use the same addresses to inform some clients I was following up their complaints, unfortunately due to my recent issues with concentration and focus I accidently sent the email to Sarah Rhodes without realising one they are still in the CC field, and two it was not the email intended for customer service, my first realisation of what I had done did not come to around 4pm when I received a call from Andrew Lyons that I chose not to answer.
I instantly checked my email and with the help from my husband (as he works in I.T.) took every measure to find the sent email and have it recalled which was around 4:20pm, my husband advised me to call the Helpdesk to gain more information, which I did. He also advised that the recall did not work due to the email addresses not being sent to a corporate environment that may or may not be utilizing a Outlook client. Once seeking further information from network experts and COTY helpdesk, I made the decision to call Andrew Lyon and apologise, as my comments did not have racist intent.
When I reflect on the incident I am deeply upset about my own opinions, as it is not my personality to speak about anyone in this regard, however I feel I have been affected by my work environment as there is a pre-existing and strong culture around certain perceptions of clients they may be troublesome or uncooperative, for example I did not know Andrew Lyons race or nationality and gained this information from a colleague I prefer not to mention at this time.
The incident was not intentional what so ever I am deeply embarrassed by this occurring, I clearly was not thinking straight and have made a terrible mistake.
Also may I ask why COTY’s email filter did not prevent the email being sent as I was using company email and logged into VPN, the email contained a profanity and should have been filtered.’
 The respondent’s managers considered the applicant’s explanation. They took into account the inappropriate comments made in the email, which were in breach of the respondent’s Code of Conduct, that confidential information about clients was conveyed to other clients, damaging the respondent’s business and reputation, the applicant’s explanation regarding the circumstances surrounding the email and her expression of regret and that the applicant had inadvertently copied the clients into the email.
 The respondent decided that, having regard to the gravity of the conduct, the employment relationship was so damaged that it could no longer maintain trust and confidence in the applicant’s employment. It decided to make a payment in lieu of notice (rather than, I take it, treating the matter as serious misconduct), in recognition of the fact that the applicant had inadvertently copied the clients into the email.
 I will now consider the application in the light of the factors that I am required to take into account by s.387 of the Act.
 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. They were also in breach of the respondent’s Code of Conduct and its IT User Conduct Policy, which specifically prohibited users of the respondent’s email system from including statements in any email that would be embarrassing to either the user and/or the respondent if they were disclosed to the public.
 Obviously, the fact that the email with the offending comments somehow ended up being sent to the clients greatly multiplied the gravity of the misconduct. I accept that the email was sent to the clients by mistake. However, whatever the explanation is as to how that 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.
 The applicant was notified of the respondent’s concern about the email, most specifically in the letter sent to her by the respondent on 10 November 2016.
 I am satisfied that the applicant was given an opportunity to respond to the reason for her termination. While the meeting planned for 14 November 2016 was not able to proceed, the applicant was able to provide a detailed and cogent response in her email of 15 November 2016. This response was taken into account by the respondent.
 The applicant was invited to have a support person at the meeting proposed for 14 November 2016.
 The dismissal did not relate to unsatisfactory performance.
 The respondent is not a small business, and it has a HR Director. I consider that the procedures it followed in effecting the dismissal were reasonable.
 As to other factors, there is no doubt that the impact of the dismissal has been significant for the applicant. She has also had a long period of service with the respondent and its predecessors, and had not previously been warned for misconduct. She also apologised for her behaviour. However, I do not consider that those factors outweigh the gravity of the misconduct so as to render the dismissal harsh. I also note that the applicant had sent another intemperate and inappropriate email the same day – this time to some of her colleagues.
 In conclusion I find that the dismissal was not harsh, unjust or unreasonable. The application is accordingly dismissed.
SENIOR DEPUTY PRESIDENT
G Sologinkin, the applicant, in person.
C Woolard, solicitor, for Cosmetic Suppliers Pty Ltd T/A Coty.
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