In a novel decision the Fair Work Commission, Deputy President Roberts upheld the dismissal of an employee for misconduct, including based on her lack of keyboard strokes while working from home.

The decision is reflective of the post-pandemic era in which working remotely has become the norm for many employees, giving rise to concerns among employers in relation to appropriately managing the productivity of employees who predominantly work from home.

Background

Ms Cheikho was employed as a full-time consultant with Insurance Australia Group Services Limited (IAG) for almost 18 years. She was responsible for establishing and reviewing static insurance policy documents, ensuring compliance with regulatory timeframes and legal standards, and notably, work from home compliance. Like many employers post COVID-19, IAG adopted a hybrid approach to working, although Ms Cheikho worked almost exclusively from home during 2022.

IAG terminated Ms Cheikho’s employment on 20 February 2023 for misconduct, namely, for failing to work as required during the period between 1 October 2022 to 16 December 2022. This decision was based on a review of Ms Cheikho’s cyber activity for that period, which revealed her hourly and daily activity on her work computer, including keyboard strokes. Ms Cheikho was placed on a performance improvement plan in December 2022 following ongoing concerns with her performance and absences.

The report found that Ms Cheikho failed to work her designated rostered hours for 44 out of the 49 working days monitored and failed to perform any work on 4 out of the 49 working days monitored. The report also found Ms Cheikho averaged less than 80 keystrokes per hour during the October-December 2022 period and revealed 320 hours with zero keystroke activity.

Ms Cheikho doubted the results of the review and submitted that she had been experiencing poor mental health due to personal issues which may have impacted her work performance. She submitted there were extended periods where she was simply reviewing documents and claimed that she also used her phone to complete work, and at times, would operate her laptop via her television.

IAG submitted that Ms Cheikho would be unable to perform the essential parts of her role on a device other than her IAG laptop and that, considering her role required data entry and corresponding with stakeholders via email and Microsoft Teams, her keystrokes would be expected to be over 500 per hour. IAG alleged that it had a valid reason to terminate the employment, as Ms Cheikho had not performed the inherent requirements of her role by failing to attend work as required during her designated hours throughout the October-December 2022 period.

Decision

The Commission found that there was a valid reason for Ms Cheikho’s dismissal and was satisfied that the evidence established there were extended periods throughout the October to December 2022 period in which Ms Cheikho was not working as required. Her failure to attend to her duties during this period was not of a “minor or incidental” nature and was a “sufficient level of seriousness to constitute misconduct”.

The Commission also determined that Ms Cheikho was unable to provide a credible explanation for the allegations levelled against her and failed to provide evidence of the work she performed during the October-December 2022 period to challenge the results of her cyber activity report.

While the Commission did consider Ms Cheikho’s length of service, her unblemished record prior to 2022 and medical evidence of her poor mental health during this time, Deputy President Roberts nonetheless held that the dismissal was not harsh, unjust, or unreasonable, having regard to his findings that there was a valid reason for the dismissal, and Ms Cheikho was notified of this reason and given an opportunity to respond.

Takeaways

This decision may give employers some assurance that using cyber activity as a basis for dismissing an employee for failing to perform work during their designated hours can constitute a valid reason for doing so. Employers must still continue to follow a fair process when effecting a dismissal on this basis though, and allow employees an opportunity to refute any allegations as to their productivity while working from home.

While employers are afforded broad rights to monitor usage by employees of equipment provided for work purposes, including laptops and mobile phones, this is finely balanced with an employee’s right to privacy. It may not always be appropriate for an employer to monitor an employee’s cyber activity without a sufficient reason. Whether an employer has an ability to do so will largely depend on the provisions contained in the employer’s workplace policies and employment contracts.

This decision is a timely reminder to employers to ensure:

1. workplace policies and procedures set out the extent to which the employer is entitled to monitor employees’ activity on company issued devices, including while working from home; and
2. contracts of employment include a provision requiring employees to comply with company policies and procedures.