Suzy Cheikho v Insurance Australia Group Services Limited

Key Takeaways

Employers have the ability to monitor an employee’s productivity and performance regardless of whether working from office or remotely.
Employers have a right to monitor and review their employees’ performance.

Facts

Ms Suzy Cheikho (Applicant) was an employee of Insurance Australia Group Services Limited (Respondent) since 2005.
The Respondent had a hybrid work setting where employees could work from home. The Applicant chose to work from home on a permanent basis.
The Respondent had implemented keystroke technology on the Applicant’s computer.
The Applicant’s employment was terminated on the basis that during the period of October to December 2022, the Applicant had significant periods where no or minimal key-board activity was recorded, including 143 hours in a month with zero keystrokes.
The Applicant filed for remedy for unfair dismissal.

Breach

Pursuant to section 390 of the Fair Work Act 2009 (Cth), the Fair Work Commission may order a remedy for unfair dismissal if:

(a) the Commission is satisfied that the Applicant was protected from unfair

dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

The Applicant claimed that the Respondent had premeditated plan to terminate her employment due to her mental health issues; however, only provided limited evidence to support her claim.
In response, the Respondent provided evidence from the Applicant’s managers, and performance improvement plan to address the Applicant’s conduct. As part of this plan, a review of the Applicant’s cyber activity was undertaken which proved that the Applicant failed to perform her duties.

Decision

The Commission found that the Applicant was dismissed for a valid reason of misconduct and was satisfied that the dismissal was fair, just and reasonable pursuant to the Fair Work Act 2009 (Cth).