Flexible work arrangements do not mean you do not have to work

On 21 July 2023 the Fair Work Commission in Cheikho v Insurance Australia Group Services determined that the termination of a worker was not unfair or harsh after the employer had reviewed the cyber activity of an employee and her work output over a 3 month period, concluded she had failed to perform the inherent requirements of her role by failing to work during her designated working hours and after giving her an opportunity to explain what she had worked on, concluded her explanation was unsatisfactory and terminated her employment.

Cheikho brought proceedings in the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy alleging that she had been unfairly dismissed and sought compensation arising from the circumstances of her dismissal. She had been employed by IAG since 2005. Her duties included 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 and work from home compliance

IAG conducted a review of Cheikho’s cyber activity from October to December 2022 including lap top use. IAG claimed that the reports generated by this review which measured amongst other things, key-stroke activity, (that is, the number of times the person physically presses a key on their keyboard) showed that Cheikho had significant periods where no or minimal keyboard activity was evident. Cheikho disputed the claim that she had not been working as required during this period and contended she used devices other than her laptop.

Cheikho was terminated on 20 February 2023 for what IAG alleged was misconduct. That misconduct involved the alleged failure by to work as required during the period October to December 2022.

In the proceedings IAG argued it had a valid reason to terminate Cheikho as she had failed to perform the inherent requirements of her role by failing to work during her designated working hours. Her failure to attend to her duties put additional pressure on her work colleagues such that IAG’s managers were concerned that this was creating a work health and safety risk for those employees because they were taking on additional work given that the Cheikho was missing deadlines and not communicating effectively.

Cheikho provided limited evidence dealing with the issue of whether there was a valid reason for the dismissal and said in relation to the cyber review of her laptop computer, “I just don’t use this device. I doubt the data. I don’t believe for a minute it’s true.”

The Commission after hearing the evidence concluded:

“The evidence demonstrated that in the period October to December 2022 the Applicant was not working as she was required to do during her designated working hours. The Applicant was given an opportunity to refute the allegation relating to the non-performance of her duties during the process she engaged in with her employer in February 2023. The evidence shows that she was unable to provide a credible explanation during that process…..In my view the evidence establishes that there were extended periods where the Applicant was not working as she was required to do in the October to December 2022 period. This constituted a valid reason for the dismissal of the Applicant.”

The reason for termination was not unfair.

The employer had given the employee an opportunity to respond to the reason for dismissal.

Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements under the Fair Work Act before terminating the employee.

Termination in the circumstances was not harsh, unjust or unreasonable.

There are ways and means of monitoring work done remotely and where an employee fails to work during the required hours of work an employer can terminate an employee for misconduct.