In the recent decision of Suzie Cheikho v Insurance Australia Group Services Limited [2023] FWC 1792, handed down on 21 July 2023, the Fair Work Commission (“FWC“) upheld the dismissal of an employee for serious misconduct, based on the results of a review of the employee’s cyber activity whilst the employee was working from home.
The decision illustrates an employer’s ability to reasonably monitor an employee’s cyber activity to ascertain their productivity when the employee is working from home. The decision confirms that an employer may rely on evidence of an employee’s cyber activity to terminate the employee for failing to perform work during their designated working hours.
Background
The Applicant, Ms Cheikho, was employed as a consultant by Insurance Australia Group Services Pty Limited (“IAG”) from May 2005 and had been employed by IAG for over 18 years at the time of her dismissal.
In late 2022, IAG incorporated a hybrid work arrangement, allowing employees to work from home, whilst actively encouraging and recommending that they return to the office. Despite this, Ms Cheikho elected to work from home on an almost permanent basis.
Throughout 2022, concerns arose regarding Ms Cheikho’s work performance as she began experiencing difficulty meeting deadlines, was consistently late to or absent from work and meetings and failed to fulfil other duties fundamental to her position.
Ms Cheikho was issued with a formal written warning by her employer and IAG subsequently placed Ms Cheikho on a Performance Improvement Plan (“PIP”) in December 2022. As part of this PIP, IAG conducted a review of Ms Cheikho’s cyber activity from 1 October 2022 to 16 December 2022.
This review measured:
- the ‘daily activity’ of the employee by recording the first and last event on her computer in any given day;
- a breakdown of her ‘hourly activity’;
- her ‘VPN activity’.
The results of the review showed that Ms Cheikho:
- did not work her designated rostered hours (7.8 hours) for 44 out of 49 working days;
- did not begin work at her designated start time (being 7:30am) on 47 out of 49 working days;
- did not finish at or after her designated finish time (being 4pm) on 29 out of 49 working days;
- did not perform any work (0 hours) on 4 out of 49 working days;
- had very low keystroke activity on her laptop on days that she had logged on to work. Ms Cheikho had averaged 34 keystrokes per hour, while IAG expected an employee in Ms Cheikho’s role to input around 500 keystrokes per hour, particularly as her role involved data entry.
This indicated to IAG that Ms Cheikho was not presenting for work or performing work as required, since her job role required her to engage with stakeholders via email and Microsoft Teams as well as access internal documents on the work device and data input.
The Decision
In addition to considering evidence regarding Ms Cheikho’s work and cyber activity, the FWC was also required to consider the termination procedure adopted by IAG to assess whether there had been a valid reason for the termination of Ms Cheikho’s employment.
IAG had issued Ms Cheikho with a formal written warning in 2022, placed her on a PIP and provided Ms Cheikho with a letter on 10 February 2023 confirming that she had engaged in misconduct by failing to perform the hours required and that her employment may be terminated. Ms Cheikho was provided with an opportunity to respond to the allegations of misconduct before any final decision regarding her employment was made. The FWC was therefore satisfied that IAG had followed a fair termination procedure and Ms Cheikho was afforded procedural fairness as she was given ample warning as well as an opportunity to respond.
The FWC was also satisfied that Ms Chiekho’s conduct was of a level of severity that constituted “serious misconduct” sufficient to warrant termination of her employment.
Ms Cheikho, in her written submission as well as at cross-examination, was unable to produce evidence of work actually performed or cast any significant doubt on the evidence produced by IAG.
For the reasons above, the FWC was satisfied that Ms Cheikho was not unfairly dismissed. Rather, the evidence regarding Ms Cheikho’s work and cyber activity, and the evidence of the termination procedure followed by IAG, was sufficient to establish that a valid reason existed for Ms Cheikho’s dismissal from employment and that it was not harsh, unjust or unreasonable.
Key Takeaways
This decision of the FWC confirms the validity of an employer’s use of monitoring technology and reinforces an employer’s right to take disciplinary action for underperformance and misconduct by employees working at home.
The cyber tracking technology used by the employer in this case is an example of technology colloquially known as “bossware” which is increasingly being used to track employees’ digital movements and measure productivity, especially while they work from home.
The use of such technology is controversial but will likely become more prominent to monitor work performed from home, particularly if for employers pushing for employees to return to the office due to concerns about productivity. Any such technology must be introduced and used in line with relevant workplace surveillance legislation, privacy laws and workplace policies. This decision therefore serves as a reminder for employers to ensure:
- their organisation has an effective workplace policy expressly allowing the employer to monitor employees’ cyber activity on company-issued devices and company networks; and
- employment contracts issued to new employees include an express provision requiring employees to observe and comply with policies and procedures adopted by the organisation, thereby requiring employees to submit to the employee’s policy on workplace surveillance. Contracts with existing employees should also be updated to include a provision to this effect if not already included.
This decision may provide some assurance to employers that using evidence of an employer’s cyber activity as a basis for dismissing an employee for failing to perform work during their designated working hours can constitute a valid reason for dismissal. However, employers must still observe a fair termination procedure and provide employees with an opportunity to respond to any allegations regarding their productivity while working remotely.
With the increasing use of AI and technology, it is becoming more important than ever to understand your rights, responsibilities and options regarding workplace and remote work monitoring. To ensure you are fully aware of your position, please contact our experienced Employment Law team at Hunt & Hunt.
