Counting the keystrokes: Accountability for employees working from home

Working from home arrangements have become commonplace for many organisations, bolstered by the shift from traditional working arrangements by many organisations adapting to the COVID-19 pandemic. While such arrangements provide employees with the flexibility to work from where they are, employers have reduced oversight of staff performance and conduct.

In the case of Suzie Cheikho v Insurance Australia Group Services Limited [2023] FWC 1792, the Fair Work Commission (FWC) held that an employee whose employment was terminated for underperforming while working from home was not unfairly dismissed.

Facts

Ms Cheikho commenced employment with Insurance Australia Group Services Limited (IAG) on 16 May 2005. From 2 January 2017, she performed the role of Consultant, Outbound Comms Disclosure. Her duties included, among other things, the creation and change of policy documents, ensuring regulatory timeframes were met and oversight and compliance with work from home arrangements.

IAG implemented a working from home policy to accommodate its workforce during the COVID-19 pandemic. However, in the latter part of 2022, IAG encouraged its employees to return to the office. By this time, Ms Cheikho had been working from home on a permanent basis and decided to continue with this arrangement despite IAG’s position.

On 4 November 2022, Ms Cheikho was issued a written warning for performance issues. In December 2022, further concerns had come to light regarding Ms Cheikho’s performance, and she was placed on a Performance Improvement Plan (PIP).

Given Ms Cheikho was working from work while on the PIP, it was a term of the PIP that Ms Cheikho’s cyber activity would be conducted. In early January 2023, a review of Ms Cheikho’s cyber activity was conducted for the period of 1 October 2022 to 16 December 2022 (the Review). The Review revealed that Ms Cheikho:

• failed to work 7.8 hours for 44 days out of 49 working days;
• failed to begin work at 7:30am on 47 out of 49 working days;
• failed to finish at or after 4:00pm on 29 out of 49 working days;
• failed to perform any work (0 hours) on 4 out of 49 working days; and
• had very low keystroke activity on her laptop which indicated she was not presenting for work and performing as required.

IAG commenced an investigation into Ms Cheikho’s performance due to the concerns raised by the findings of the Review. Ms Cheikho was issued with a ‘show cause’ letter and was requested to provide a response. In her response, Ms Cheikho provided medical evidence to support her position that her medical issues affected her sleep, memory, day-to-day functioning and was likely the cause of her performance issues.

On 20 February 2023, Ms Cheikho was dismissed from her role on the basis that she failed to perform her work as required during the period of October to December 2022.

On 13 March 2023, Ms Cheikho made an application to the FWC alleging that she had been unfairly dismissed from her employment with IAG and sought compensation for her dismissal.

Decision

Arguments of the parties

In their submissions, IAG posited that the inherent requirements of Ms Cheikho’s role required her to work from her laptop, and Ms Cheikho failed to meet these requirements. IAG relied upon the findings of the Review, particularly that there was minimal or no keyboard activity for a significant number of hours while Ms Chiekho was purportedly performing her duties.

IAG submitted that Ms Cheikho’s failure to attend to her duties by missing deadlines and not communicating with her colleagues placed pressure on her colleagues to take on additional work (in one instance even resulting in IAG being fined by the Australian Securities and Investments Commission).

Ms Cheikho disputed the allegations and findings of the Report but was unable to account for the missing hours of work aside from raising her personal issues and mental health issues as raised during the investigation process. Ms Cheikho alleged that IAG had a premeditated plan to remove her from the business and that she was targeted due to her mental health issues.

The FWC decision

The FWC found that the impact of the dismissal on Ms Cheikho’s personal and economic situation were ‘significant and diverse’. In particular, the FWC was empathetic to Ms Cheikho having experienced several personal setbacks in the 2 years prior to her dismissal and that she was suffering from mental health issues. The FWC acknowledged Ms Cheikho’s longstanding employment which was not affected by performance issues.

However, the FWC determined that there were no procedural fairness issues in the process which led to the termination of Ms Cheikho’s employment. The FWC noted that IAG had notified Ms Cheikho of the valid reason for her dismissal through issuing a show cause letter and provided her with the data obtained from the Report. Further, Ms Cheikho was provided with an opportunity to respond to the allegations and warnings about her unsatisfactory performance before the dismissal.

Ultimately, the FWC agreed with IAG’s position and determined that given Ms Cheikho did not perform the duties of her role while working from home between October and December 2022, the termination of her employment was warranted. The FWC determined that the dismissal was not harsh, unjust, or unreasonable.

Take home messages

This case is an example of issues which employers may face when permitting working from home, or flexible working arrangements, in their organisation. Employer’s must weigh up the benefits and costs before implementing such arrangements, which will vary depending on the type of organisation, sector, and workforce.

In any event, this case serves as a reminder that if your organisation already implements flexible working arrangements, or is looking to do so, that it has a clear and robust policy and procedure in place. Those documents should establish benchmarks and expectations of employees (such as the hours of work and duties) to ensure that its employees are meeting the requirements of their role and that disciplinary action may follow for failing to adhere to these expectations.

For more specific information or advice on any of the material contained in this article please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au, Thomas Tagirara on +61 8 8217 1337 or ttagirara@normans.com.au or Divya Narayan on +61 8 8210 1279 or dnarayan@normans.com.au.