The Cheikho Case: A Remote Working Reality Check
A recent case decided by the Fair Work Commission, Suzie Cheikho v Insurance Australia Group Services Limited [2023] FWC 1792, gives insight on the surveillance of “working from home” and the duties of employees toward employers who expect performance no different than in a glass office.
Key Facts
Ms Suzie Cheikho is a former employee at Insurance Australia Group (IAG) who faced scrutiny over her keystroke activity during work hours which were monitored by her employer and revealed periods of inactivity which led to scrutiny about her capability to perform her senior underwriting role.
Cheikho had the responsibility of preparing insurance documents that adhered to regulatory standards to do business and ironically overseeing the compliance of her colleague’s remote work protocols and expectations of IAG.
On 20 February 2023, Cheikho was dismissed by IAG due to a record of missed deadlines and meetings, prolonged absences with no means of contact, and failing to complete crucial tasks, resulting in fines levied against her employer by the industry regulator. Cheikho was issued a review report and given multiple opportunities to reason for her inactivity, but she had no explanation for the issues outlined in the report. She did however identify she was struggling with personal mental health during the time.
The review report included
- Failing to work hours (7.8 hours) – 44 out of 49 hours.
- Failing to begin work (7.30 am) – 47 out of 49 days.
- Failing to finish work (4.00 pm) – 29 out 49 days.
- Failing to perform any work (0 hours) – on 4 out of 49 days.
- During the days the applicant logged on there was very low keystroke activity on her laptop.[1]
The keystroke analysis indicated that Cheikho only exceeded 1,000 keystrokes in a one-hour period once, and the registered keystrokes were 1,830 which amounted to half a page of text.
On 13 March 2023, Cheikho made an application for unfair dismissal seeking compensation at the Fair Work Commission pursuant to section 394 of the Fair Work Act 2009 (Cth) (FWA).
The Commissioner Deputy President Roberts held that section 390 of the FWA provides “a remedy can be ordered for unfair dismissal” if both limbs of section 390 are satisfied, which are:
- the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
- the Applicant has been unfairly dismissed.
Valid Reason
In order to determine whether Cheikho’s dismissal was unfair,[2] factors such as a “valid reason” for the dismissal relating to the persons capacity or conduct[3] were considered.
The Commissioner considered the material facts of the review report and the processes IAG followed when addressing Cheikho’s non-performance issues in order to determine whether her dismissal was due to a “valid reason”.
Evidence
The Commissioner considered the common law principles derived from Edwards v Justice Giudice[4] where the commission decided that, in circumstances where a termination related to an employee’s behaviour, the Commissioner must ensure that the behaviour indeed happened and warranted the termination. This involved the Commissioner determining whether the alleged conduct occurred, and its nature based on the evidence presented during the proceedings.
The Commissioner considered the evidence in Cheikho’s case which was presented by IAG in the form of a review report, records of the opportunities given to Cheikho to refute the non-performance allegations and her inability to provide a credible explanation during IAG’s internal investigation process. Ultimately, the Commissioner was satisfied that the evidence did in fact constitute a valid reason for dismissal.
Unfair Dismissal Determinants
The Commissioner then considered key legislative pre-requisites to determining unfair dismissal and decided as follows:
- Pursuant to section 387(b) of the FWA, was the Applicant notified of the “valid reason”?
The Commissioner decided that Cheikho was notified by the Respondent of “valid reason” by letter dated 10 February 2023.
- Pursuant to common law principles derived from Crozier v Palazzo Corporation,[5] was the Applicant given an opportunity to respond to any “valid reason” related to their capacity or conduct?
The Commissioner decided that the purpose of the letter dated 10 February 2023 was to provide Cheikho the opportunity to respond to the proposed termination of her employment.
- Pursuant to section 387(d) of the FWA, did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at any discussions relating to the dismissal?
The Commissioner decided that Section 387(d) would “only be relevant when the employee asked to a have a support person present in a discussion relating to dismissal the employer unreasonable refuses.”[6]
On 2 February 2023 Cheikho had a union support person present, with no unreasonable refusal by the Respondent.
- Pursuant to common law principles derived from Annetta v Ansett Australia Print[7] , was the Applicant warned about unsatisfactory performance before the dismissal?
Cheikho was warned about unsatisfactory performance on four (4) occasions dated, 6 June, 31 October, and 4 November 2022, she was also put on a Performance Improvement Plan (PIP) in December 2022.
The Commissioner was ultimately satisfied that weight given to each finding under section 387(a) of the FWA was fundamental in determining that the Applicant was dismissed for a “valid reason” of misconduct and that the dismissal of the Applicant was not harsh, unjust, or unreasonable pursuant to section 385(b) of the FWA.
The Commissioner also held that due to lack of evidence to the contrary there is “little doubt that the factors underlying the Applicant’s disconnection from work were serious and real.”[8]
Cheikho’s application for unfair dismissal was therefore dismissed.
The Cheikho v IAG case is a thought-provoking example of the balance between the privilege of working remotely and an employee’s primary duty to his/her employer carrying out his/her work professionally and completely. This case is of significant importance as it has heightened employers’ awareness of their capability to oversee and monitor the performance of remote workers, underscoring the effectiveness of cyber data as a source of evidence in potential disputes related to unfair dismissals.
Keystroke tracking in particular has emerged as an effective approach to appraise employee performance that falls within the ambit of workplace surveillance. But it begs the question whether it is the only indicator of performance. Nonetheless, it’s imperative to recognise that an employer’s authority to conduct workplace surveillance is circumscribed by their workplace policies and the rights offered to employees in contract of employments.
[1] Suzie Cheikho v Insurance Australia Group Services Limited [2023] FWC 1792 at 18.7.
[2] Fair Work Act 2009 (Cth), s 385.
[3] Fair Work Act 2009 (Cth), s 387.
[4] Edwards v Justice Giudice [1999] FCA 1836, at 7.
[5] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), at 75.
[6] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[7] Annetta v Ansett Australia Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000), at 16.
[8] Suzie Cheikho v Insurance Australia Group Services Limited [2023] FWC 1792 at 51.