Remote Worker Misconduct: Keylogging Evidence Validates Firing

In the recent case of Suzie Cheikho v Insurance Australia Group Services Limited [2023] FWC 1792, the Fair Work Commission (FWC) upheld the dismissal of an employee for serious misconduct. The employer discovered the alleged misconduct by using keystroke tracking technology to review the employee’s work and online activity while she was working from home.

What's crucial in this case, and central to the Commission's finding that the dismissal was not unfair, were the steps taken by the employer after the initial investigation, which had uncovered sub-optimal performance. Ms Cheikho's online activity showed significant discrepancies between her actual and designated working hours, indicating she wasn't meeting performance expectations. The employer responded by placing her on a Performance Improvement Plan (PIP) and provided her with formal warnings.

The FWC deemed the dismissal fair, as the employer followed a fair termination procedure, provided warnings, and gave Ms Cheikho an opportunity to respond to the allegations.

This decision highlights employers' rights to monitor employees' digital activities, especially while working remotely, and emphasises the importance of clear workplace policies and fair termination procedures.

Ms Suzie Cheikho was employed by Insurance Australia Group Services Limited. She was dismissed by IAG following an investigation undertaken into alleged underperformance.

She applied to the Fair Work Commission, alleging unfair dismissal by Insurance Australia Group Services Pty Limited.

The Commission had two (2) issues to resolve if it was to order a remedy:

1. It had to be satisfied that the applicant was protected from unfair dismissal; and
2. that unfair dismissal occurred.

Ms Cheikho met the criteria for protection from unfair dismissal due to her length of employment and the enterprise agreement in place. Her dismissal on February 20, 2023, met the timeframe for application.

The dismissal's fairness hinged on whether it was harsh, unjust, or unreasonable. The factual background includes Ms Cheikho's role and the circumstances of her termination, which the respondent claims were due to misconduct regarding her work activity from October to December 2022, disputed by Ms Cheikho.

In determining whether Ms Suzie Cheikho's dismissal was harsh, unjust, or unreasonable, the Fair Work Commission considered various factors outlined in section 387 of the Act. This included evaluating whether there was a valid reason for dismissal related to her capacity or conduct, notification of reasons, opportunity for response, and other relevant matters.

Ms Cheikho contended that her dismissal lacked a valid reason, alleging a premeditated plan against her due to mental health issues. She disputed the findings of a review of her work activity and claimed that personal difficulties affected her performance.

The respondent, Insurance Australia Group Services Pty Limited, argued that Ms Cheikho failed to fulfil her role requirements, impacting colleagues' workload and posing a safety risk. They provided evidence of performance issues and misconduct, including inadequate work hours and low productivity.

Evidence showed a pattern of performance concerns dating back to April 2022, culminating in a formal warning and a performance improvement plan. Perhaps controversially, IAG relied upon keylogging information to undertake a review of Ms Cheikho's cyber activity. This revealed extended periods of inactivity during work hours, contradicting her claims.

Despite opportunities to respond, Ms Cheikho provided limited evidence and did not effectively refute the allegations. On the other hand, the respondent presented detailed evidence supporting the validity of the dismissal.

Ultimately, Ms Cheikho's employment was terminated on 20 February 2023 following a series of documented performance issues and misconduct, leading the Fair Work Commission to conclude that her dismissal was not harsh, unjust, or unreasonable based on the evidence presented.

In his decision, Deputy President Thomas Roberts of the Fair Work Commission laid out some of the principles for determining a "valid reason" for dismissal. The decision emphasises that such a decision should be well-founded and not arbitrary or biased. When assessing conduct-related dismissals, the Commission must establish whether the conduct occurred and justified termination, independent of the employer's beliefs.

In the case of Ms Suzie Cheikho, evidence showed she did not meet work requirements during the period the employer relied upon (October to December 2022). This was despite the employer providing her with ample opportunities to refute the allegations. The Deputy President found that Ms Cheikho failed to provide a credible explanation for her lack of productivity. Failure to justify her position essentially assisted in finding that the dismissal was valid.

Furthermore, the Commission determined that Ms Cheikho was adequately notified of the reasons for termination, as outlined in correspondence from the employer, providing her an opportunity to respond. Despite her claim of disadvantage regarding access to materials, she had sufficient opportunity to provide a defence.

Additionally, in response to an allegation that Ms Cheikho was not provided with adequate opportunity to have a support person present, the Commission found no unreasonable refusal by the employer to allow a support person during discussions related to dismissal The Commission noted that Ms Cheikho had a union representative present at one meeting.

In summary, Ms. Cheikho's dismissal was deemed justified based on her failure to meet work requirements, adequate notification of reasons, opportunity to respond, and absence of unreasonable refusal for a support person. The Fair Work Commission also examined whether the applicant was satisfactorily warned about unsatisfactory performance before her dismissal. Despite evidence of unsatisfactory performance and previous warnings, the dismissal was characterised as misconduct due to the severity of the applicant's failure to fulfil duties.

Ultimately, considering each relevant factor, the Commission concluded that the dismissal was not harsh, unjust, or unreasonable, leading to the dismissal of her Unfair Dismissal application.

Cheikho was dismissed due to misconduct discovered through keystroke logging while working remotely during the pandemic. The logging revealed that she consistently didn't work full days, started and finished late, and had periods of no activity, which led to her termination.

This highlights an employer's ability to surveil employees, monitor remote employees, and use cyber data as evidence in disputes. However, surveillance must comply with workplace policies and employment contracts.

Today, the Workplace Surveillance Act 2005 (NSW) permits keystroke tracking as an efficient method but requires prior notice to employees.

1. UNILAD. "Australian boss fires employees after tracking how long they spent working from home." UNILAD, 25 April 2024.
2. UNILAD. "Woman fired after being caught working inconsistently through keystroke tracking technology." UNILAD, 9 April 2024.
3. Fair Work Commission. "Suzie Cheikho v Insurance Australia Group Services Pty Limited." Decision of the Fair Work Commission, 18 April 2023.