When destroying employer trust gets you dismissed

Dismissed for not disclosing criminal charges

Many unfair dismissal claims fail because the employee seriously breached the trust of their employer. Trust and confidence are fundamental aspects of the employee-employer relationship. When an employee destroys the trust and confidence of their employer, or vice versa, it strikes at the heart of the employment relationship. 

This means that it’s crucial that employees are open and honest with their employer. And that they act in a way that doesn’t destroy their employer’s trust and confidence. The Fair Work Commission is likely to determine that a dismissal was fair if the employee’s misconduct was so serious that it destroyed the trust and confidence at the heart of the employment relationship.

What types of conduct can destroy trust and confidence?

Past unfair dismissal cases help us learn when the Fair Work Commission considers trust and confidence to be so damaged that it warrants the employee’s dismissal. Generally, it requires the employee to commit serious misconduct. For example, doing one of the following while at work:

• Stealing company property.
• Physically or sexually assaulting a co-worker.
• Bullying or harassing a co-worker.
• Being dishonest.
• Committing fraud.
• Damaging the reputation of your employer.
• Insulting customers.
• Grossly neglecting your duties.
• Being under the influence of drugs or alcohol.
• Seriously breaching a health and safety procedure.

Let’s take a look at two unfair dismissal cases where the employee’s serious misconduct led to irrevocable damage to the trust and confidence of their employer.

Sydney Trains worker dismissed for not disclosing drug and firearms crimes

The unfair dismissal case Julian Strangio v Sydney Trains [2023] highlights the importance of employee’s being honest. And how being dishonest can seriously damage the trust and confidence of their employer. Station duty manager Julian Strangio had been employed by Sydney Trains since 1985. Having started at Sydney Trains as a 16-year-old, Mr Strangio was a well-regarded employee with regard to his job performance.  

However, on 10 May 2021, Mr Strangio was charged by the New South Wales Police with 13 criminal offences. This included offences related to the supply of cannabis, having been found in possession of around 2 kilograms of cannabis. He was also charged with possessing or using a prohibited weapon without a permit. Ten offences related to the storage of firearms. And a proceeds of crime offence.

Mr Strangio appeared in court just over a year later on 11 May 2022. He was convicted of possession or use of a prohibited weapon without a permit, for which he received a fine. And he was convicted of the supply of cannabis charge, for which he was ordered to perform 100 hours of community service.

Anonymous tip off lands employee in hot water, more crimes are uncovered

The NSW Transport code of conduct states that employees must immediately disclose if they have been made the subject of criminal charges. But it wasn’t until 11 months after Mr Strangio was convicted that Sydney Trains learned about his brushes with the law. And the news wasn’t revealed by him, but rather an anonymous source who emailed Sydney Trains.

Sydney Trains soon conducted a workplace investigation where it learned of the full nature of Mr Strangio’s offences and convictions. The workplace investigation also uncovered that he had another unreported criminal conviction from 2001. This was for an unknown crime. When Sydney Trains asked Mr Strangio to provide details of this crime, he refused. During the workplace investigation, it was also noted that Mr Strangio had in 1990 been suspended from employment due to two criminal convictions. The convictions were related to possession of a prohibited drug and possession of drug paraphernalia.

Employee is dismissed for unreported crimes

Sydney Trains’ workplace investigation subsequently led to a show cause process, in addition to transport-related review and appeals processes, which Mr Strangio availed. Then on 25 November 2022, Sydney Trains issued Mr Strangio a letter informing him that he had been dismissed from his role. This was because he had not notified them of his criminal charges in breach of the NSW Transport code of conduct. Mr Strangio subsequently made an unfair dismissal claim with the Fair Work Commission.

Employee makes his argument to the Fair Work Commission

At his unfair dismissal hearing, Mr Strangio told the Fair Work Commission that he had “fully intended” to inform Sydney Trains about his 2021 criminal offences. However, he claimed that his solicitor had advised him to “hold off” from disclosing them until “the police facts were settled.” Mr Strangio claimed that he was going to inform Sydney Trains, but that he was “denied this opportunity” due to the anonymous tip off.

Mr Strangio also argued to the Fair Work Commission that not reporting his offences was “at worst, a serious error of judgement.” He said that his dismissal was a disproportionate response. Also, that the code of conduct doesn’t require dismissal for such conduct. And he argued that his remorse and length of service to Sydney Trains should be taken into consideration.

Breach destroyed the “heart of trust” in the employer relationship

Despite his best efforts, Mr Strangio’s arguments did little to convince the Fair Work Commission. Fair Work Commissioner Donna McKenna took issue with the fact that he had not revealed the criminal charges to Sydney Trains. She said that this “was not a minor breach” of the code of conduct. But rather, it was a breach that “went to the heart of the trust that Sydney Trains is entitled to have in its employment relationships.”

Fair Work Commissioner McKenna did however note that Mr Strangio’s criminal convictions “do not necessarily provide a valid basis” for his dismissal. However, she considered the testimony provided by Sydney Trains. This stated that all rail safety workers are required not to have prescribed drugs including cannabis in their systems while at work. Fair Work Commissioner McKenna also considered testimony from Sydney Trains that it is the role of station managers to drug test employees. And that they also have to explain to new recruits that they can be dismissed for a positive test.

A Sydney Trains manager stated that Mr Strangio’s possession of around two kilograms of cannabis made it difficult to “have confidence in [Mr Strangio’s] ability to deliver this message and be seen as genuine.” He also said that not dismissing Mr Strangio would send a “very poor message about the values of Sydney Trains.”

Ultimately, Fair Work Commissioner McKenna ruled that Mr Strangio should have “adhere[d] to his reporting obligation under the code of conduct.” That is, by notifying them of the criminal charges when they were first handed down. Fair Work Commissioner McKenna took into account Mr Strangio’s 37 years of “largely untarnished” employment with Sydney Trains. However, she found that his dismissal was not harsh, unjust or unreasonable.

Worker destroys employer’s trust by sending offensive email to clients

In the unfair dismissal case Georgia Sologinkin v Cosmetic Suppliers Pty Ltd T/A Coty [2017], the Fair Work Commission highlighted the criticality of trust and confidence in the employer-employee relationship. And how this trust and confidence can be destroyed by an employee’s serious misconduct.

Georgia Sologinkin was a Key Accounts Manager for Cosmetic Suppliers. She had worked for the company for 16 years and had an unblemished employment record. That was until the morning of 9 November 2016, when Ms Sologinkin sent an “intemperate and inappropriate” email to Cosmetic Suppliers’ customer services department. In the email, she described the department as “totally incompetent.”

Contractor accidentally sends “highly offensive” email

She then decided to email a friend of hers, who was working for Cosmetic Suppliers as a contractor. In the email, Ms Sologinkin made several “disparaging” and one “highly offensive” statements about some customers her friend was in contact with. This included making reference to one of the customer’s nationality and ethnicity.

Ms Sologinkin hit send on that email, and it was received by her friend. But unbeknownst to her, she had also sent it to the customers that she had badmouthed in the email. In a fluster, Ms Sologinkin attempted to undo the email send. But hard as she tried, it had already made its way into cyberspace.

As you can imagine, the customers weren’t happy when the email found its way to their inboxes. One of the customers attempted to call Ms Sologinkin, without success. But he eventually got through to Cosmetic Suppliers’ sales director. And he followed this up with an email in which he stated that there “needs to be a consequence to this stupidity, await your advice.” The next morning, the same client and another told Cosmetic Suppliers that they no longer wanted to be customers if Ms Sologinkin was still employed.

“No longer maintain trust and confidence:” Workplace investigation leads to dismissal

Following a workplace investigation into the email, Ms Sologinkin was invited to a disciplinary meeting on 14 November. However, she wasn’t able to attend due as she was on sick leave due to work-related stress. Cosmetic Suppliers then required Ms Sologinkin to provide a written response to the allegations made against her by the end of 15 November.

In her written response, Ms Sologinkin outlined that at the time of sending the email, she had been:

• Experiencing stress at work.
• Undergoing treatment for post-traumatic stress disorder.
• Without proper sleep.
• Feeling the pressure of recent organisational changes that made dealing with customer complaints difficult. She felt that she hadn’t received adequate support from management following the changes.

Ms Sologinkin also outlined that the email was unintentional. And amazingly, she even blamed the company’s email filter from allowing her offensive email from being sent. These explanations, however, fell on deaf ears. Cosmetic Suppliers decided to dismiss Ms Sologinkin. This was on the grounds that the employment relationship was so damaged that the company could “no longer maintain trust and confidence in the applicant’s employment.” Ms Sologinkin subsequently made an unfair dismissal claim with the Fair Work Commission.

Fair Work Commission agrees with Cosmetic Suppliers

In deciding on the unfair dismissal case, the Fair Work Commission took into account Ms Sologinkin’s sixteen years of service at Cosmetic Suppliers. Her spotless disciplinary record. And the fact that she had expressed remorse. However, that’s where the sympathy for Ms Sologinkin ended.

The Fair Work Commission found that Cosmetic Suppliers had a valid reason to dismiss her. It stated that the offensive email was in breach of the company’s code of conduct. And that the email was particularly inappropriate given that it came from someone whose job was to “manage relations with key customers.”

The Fair Work Commission stated that the ultimate responsibility for the email “must be borne by the applicant.” And that the email “did in fact damage” Cosmetic Suppliers’ reputation. Ultimately, the Fair Work Commission ruled that the dismissal was not harsh, unjust or unreasonable.

Conclusion to: When destroying employer trust gets you dismissed

If you have been subjected to an unfair dismissal or had your workplace rights violated, get in touch with A Whole New Approach. Our team can assist you in taking action through the Fair Work Commission, but it’s important to act quickly. Unfair dismissal or general protections claims must be submitted within 21 days.

If you require guidance on the type of claim you should make with the Fair Work Commission, we are here to assist you. A Whole New Approach is a reputable provider of workplace mediation services in Australia, with more than 20 years’ experience. We have aided over 16,000 Australian workers in taking action through the Fair Work Commission. Our mission is to advocate for workers who have been treated unfairly and to ensure that everyone has access to a fair and equitable workplace.

We provide a free initial consultation to assist you in comprehending your rights and exploring your alternatives. Our consultations are confidential, and there’s no obligation to engage our services. Our skilled mediators are available to assist you and help you seek justice.

Contact us at 1800 333 666 for a private discussion and take the first step toward a just outcome.

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