Woman fired after a cyber review into her work from home activity showed she wasn’t typing enough
Overview
The Fair Work Commission (FWC) has recently handed down an unfair dismissal decision in Suzie Cheikho v Insurance Australian Group Services Limited [2023] FWC 1792. This decision serves as a reminder to employees that they must still attend to their expected duties and ‘work’ when working from home.
The decision also demonstrates an employer’s ability to reasonably monitor an employee’s cyber activity and how active they are when using their work supplied computer, to then rely on this during any disciplinary action.
Background Facts
The Applicant, Ms Cheikho commenced employment with the Respondent, Insurance Australia Group Services Limited (IAG) in 2005. Ms Cheikho’s role was Consultant, Outbound Comms Disclosure with duties including:
responsibility for the creation and change of static insurance policy documents;
ensuring static policy documents sent to customers complied with regulatory and legal standards by ensuring they were reviewed and signed-off by key stakeholders within IAG;
ensuring that regulatory timeframes were met;
assisting in the delivery of the regulatory policy communication strategy and folder management;
mailbox management;
peer reviews;
leave management; and
work from home compliance.
Ms Cheikho elected to work from home on an almost permanent basis in recent years. In around April 2022, performance issues began to arise with Ms Cheikho such as difficulties in meeting deadlines, being absent and uncontactable, missing meetings and a failure to lodge a product disclosure statement with the regulator.
Again, in around October 2022, further concerns began to arise regarding Ms Cheikho’s conduct and performance which included:
A failure to deal with a task allocated to her for a period of 4 weeks resulting in a fine being imposed on IAG;
A failure to work her designated rostered hours (7.8 hours) for 44 working days out of 49 working days;
A failure to begin work at or before 7:30 am (her designated start time) on 47 working days out of 49 working days;
A failure to work until 4:00 pm (her designated finish time) on 29 working days out of 49 working days; and
A failure to perform any work (0 hours) on 4 days out of 49 working days.
As a result of these concerns, Ms Cheikho was issued with a written warning and put on a performance improvement plan (PIP). Further to these measures, IAG’s cyber team was tasked with the job to conduct a review of Ms Cheikho’s cyber activity from the period of October – December 2022 such as keystroke activity which is the number of times a person physically presses a key on their keyboard. This cyber activity review revealed that Ms Cheikho had significant periods where no or minimal keyboard activity was evident – there was found to be approximately 320 working hours of no keystroke activity and only a singular hour period which exceeded 1000 keystrokes (equating to about half a page of text). This review only added to the concerns of IAG.
In the formal disciplinary procedure that took place in early February 2023, Ms Cheikho could not provide any tangible evidence (besides her word) that demonstrated that these allegations and findings from the cyber activity review were inaccurate. She also argued a multitude of matters in her defence such as that IAG had a premeditated plan to remove her from the business and that she was targeted due to her mental health issues, citing a medical diagnosis from her doctor which significantly impacted her sleep, memory and day to day functioning. She also denied that the results of the cyber activity accurately reflected the work she was doing because she often used other devices (than her work laptop) to complete work due to technological and system difficulties.
The decision was made by IAG to terminate Ms Cheikho’s employment on 20 February 2023 for the reason of misconduct – failing to work and meet her required duties. Consequently, she filed an unfair dismissal claim.
Decision
The FWC found in favour of IAG that Ms Cheikho was not unfairly dismissed. Rather, the FWC was satisfied that the evidence from both the disciplinary procedure and the subsequent FWC proceedings was unable to disprove the allegations against Ms Cheikho and instead demonstrated that there were extended periods where she was not working as required.
Overall, there constituted a valid reason for Ms Cheikho’s dismissal from employment and it was not harsh, unjust or unreasonable.
Reasoning
In addition to the evidence presented relating to Ms Cheikho’s work and cyber activity, the FWC was also required to consider the procedure leading up to Ms Cheikho’s termination as to whether there was a valid reason for her termination.
Ms Cheikho was given a letter on 10 February 2023 by IAG making it clear that she had engaged in misconduct and that termination of her employment was being considered. She was also notified of her opportunity to respond to the allegations before a definite decision was made and that she was being afforded procedural fairness. This was in addition to a letter from a week earlier notifying Ms Cheikho of the allegations and providing her with a copy of the cyber data relating to the allegations. The FWC was satisfied that Ms Cheikho was notified of the valid reason for her termination and was given an opportunity to respond to the allegations.
Ms Cheikho had been ‘warned’ leading up to her termination in written form and through being placed on a PIP, however the issue of warnings was not considered relevant by the FWC because the reasons for Ms Cheikho’s termination were characterised as misconduct rather than unsatisfactory performance. The conduct of failing to attend to her work duties was of a level serious enough to constitute misconduct as opposed to unsatisfactory performance which is typically more minor in scale. Nonetheless, even if Ms Cheikho’s dismissal was for reasons of unsatisfactory performance, she was still adequately warned which goes in favour of IAG.
Whilst there are no obligations on an employer to offer an employee a support person to assist in discussions relating to the dismissal, an employer should not unreasonably refuse a support person from being present. Here, there was no unreasonable refusal by IAG to prevent Ms Cheikho from having a support person and this was a neutral factor in the circumstances.
There were also other factors considered relevant by the FWC:
Ms Cheikho’s termination had significant and adverse effects on her personal and economic situation;
Ms Cheikho had a number of personal traumatic setbacks in the 18 months to 2 years prior to her termination;
Ms Cheikho had a long and satisfactory work performance until these recent issues; and
Because IAG were in the insurance sector, Ms Cheikho’s acts and omissions had exposed it to penalties and risks for its client.
Key Takeaways
This decision by the FWC sends a rather clear message to employees that the work they do when working from home is able to be monitored and tracked where necessary. Attempting to argue against this cyber data and prove any inaccuracies will be a difficult task for any employee so the chances of an employee successfully making an unfair dismissal claim in these circumstances are mostly reliant on faults by an employer in procedures prior to any decision to terminate employment such as a lack of notice or opportunity to respond.
From any employer’s perspective, IAG in this case handled the situation without really any flaws that could go against their favour when considering the elements of unfair dismissal. Ms Cheikho was afforded procedural fairness throughout and was given opportunities to respond and improve her conduct which led to an overall valid reason for the dismissal.
If you require any assistance or advice related to this article or unfair dismissal generally, please contact:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Sonia McCabe
Senior Associate
T 03 5226 8558
E smccabe@ha.legal
Matthew Synoradzki
Lawyer
T 03 5226 8542
E msynoradzki@ha.legal
