The Fair Work Commission has determined that an employer had a valid reason to dismiss an employee who was working from home and who was found by the Fair Work Commission to not be working her “designated hours” based upon a report obtained by the employer of her “keyboard activity”. Here is a portion of the decision.
“Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[13] The Applicant submitted that there was no valid reason for the dismissal, that the Respondent had a premeditated plan to remove her from the business and that she was targeted due to her mental health issues.[7] The Applicant denied that the results of the review of her cyber activity in the October to December 2022 period reflected the reality of the work she was doing in that period.
[14] The Respondent submitted that there was a valid reason in that the Applicant failed to perform the inherent requirements of her role by failing to work during her designated working hours. The Respondent also maintained that the Applicant’s failure to attend to her duties put additional pressure on her work colleagues such that the Respondent’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 Applicant was missing deadlines and not communicating effectively.
[15] The Applicant provided limited evidence dealing with the issue of whether there was a valid reason for the dismissal. In her Application, the Applicant 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.’ In her written response to the allegations relating to alleged misconduct dated 8 February 2023 and relied on in the proceedings by the Applicant, the Applicant said to the Respondent:
I am writing to address the allegations. I have had a look at the data and tried to get an explanation for those missing hours and times and really can’t recall why or how it’s that low. I have tried to go through emails and messages to see if I can explain it.
I have been going through a lot of personal issues which has caused a decline to my mental health and unfortunately I believe it has affected my performance and my work…
[16] In her oral evidence the Applicant said that because she was not given a second monitor, she would use her television but ‘run it through the laptop.’[8] When she was asked whether she was saying that the data relating to her computer activity was wrong because she was accessing the systems on her television the Applicant said:
No, no, no, I’m not saying it’s wrong, I said that’s some ways that I would access the data as well. And I don’t know if that’s the reason why it’s wrong, but at the end of the day predominantly I’m using the laptop. Like I’m not using another device to log into IAG’s system.[9]
[17] The Applicant was also asked whether she always used her laptop to login to her work and answered that she also used her phone whilst accepting that predominantly, for most of her work she used her laptop.[10] She said that there were extended periods where she was just reading and checking the wording of documents and did not have to do anything else.[11] The Applicant said that she always started on time but accepted that she had ‘a few things going on’ because of an injury and if she had to step out for medical appointments during working hours she would send a Teams message to let people know and make up the time afterwards.[12]
[18] The Respondent provided evidence from two managers, Ms. Prior, Executive Manager Operational Design and Delivery and Ms. Dennis, Lead Outbound Comms Disclosure. Ms. Prior was the manager, twice removed, of the Applicant. Ms Dennis was the Applicant’s Direct Manager. In summary, Ms Prior’s evidence was as follows:
(1) Ms Prior first became aware of concerns with the Applicant’s conduct in October 2022. Ms Prior prepared a letter to the Applicant asking that she attend a meeting on 1 November 2022 to discuss those concerns.
(2) The concerns included the failure of the Applicant to deal with a task allocated to her for a period of 4 weeks resulting in a fine being imposed on the Respondent by the regulator ASIC and attending a Teams meeting with Ms. Dennis with the word ‘Fuck’ written across her hand.
(3) Ms. Prior issued a written warning to the Applicant dated 4 November 2022 arising out of the meeting of 1 November.
(4) Ms Prior became aware of further concerns with the Applicant’s performance in the period September to November 2022 through Ms. Dennis and Ms Chavan.
(5) In December 2022, in response to these further concerns Ms. Prior put the Applicant on a performance improvement plan (PIP) to formalise the matter and to demonstrate what was expected of the Applicant.
(6) As part of the PIP process, in early January 2023 a review of the cyber activity of the Applicant was undertaken by the Respondent for the period 1 October 2022 to 16 December 2022.
(7) The review disclosed that:
(i) The Applicant failed to work her designated rostered hours (7.8 hours) for 44 working days out of 49 working days;
(ii) The Applicant failed to begin work at 7:30 am (her designated start time) on 47 working days out of 49 working days;
(iii) The Applicant failed to finish at or after 4:00 pm (her designated finish time) on 29 working days out of 49 working days;
(iv) The Applicant failed to perform any work (0 hours) on 4 days out of 49 working days; and
(v) during the days that The Applicant had logged on to work there was very low keystroke activity on her laptop, which indicated that she was not presenting for work and performing work as required.
(8) As a result of the review, Ms. Prior issued a letter to the Applicant dated 1 February 2023 asking the Applicant to attend a formal meeting on 2 February.
(9) Ms Prior (and Ms Dennis) met with the Applicant and a union support person from the Finance Sector Union on 2 February. At this meeting the Applicant said words to the effect of:
I cannot believe this data. Sometimes the workload is a bit slow, but I have never not worked. I mean, I may go to the shops from time to time, but that is not for the entire day. I need to take some time to consider this and I will put forward a response.
(10) At the request of her union representative the Applicant was given additional time, until 8 February 2023, to provide a written response.
(11) On 8 February 2023 the Applicant provided a written response (reproduced in part at paragraph [15] above).
(12) The Applicant did not provide any evidence to demonstrate that she had been online and working throughout the periods of inactivity on the 44 of the 49 working days.
(13) On 10 February Ms Prior issued a letter to the Applicant inviting her to attend a further meeting on 13 February 2023 to ‘show cause’ why her employment should not be terminated.
(14) The Applicant provided a written response dated 14 February 2023 to the show cause letter.
(15) Ms. Prior and Ms. Dennis met with the Applicant on 20 February and terminated the Applicant’s employment.[13]
[19] Ms. Dennis provided detailed evidence in her witness statement. She described performance issues with the Applicant dating back to April 2022. These included difficulties in meeting deadlines, being absent and uncontactable, missing meetings and a failure to lodge a product disclosure statement with the regulator. Ms. Dennis gave evidence that the Applicant was issued with a ‘Letter of Expectation’ on 6 June 2022 outlining concerns with the Applicant’s conduct and performance. She said that in October 2022 a fine had been imposed on the Respondent by ASIC arising out of the Applicant’s failure to lodge documentation with that body. She said that the Applicant was issued with a formal written warning in November 2022 and that by early December, in response to ongoing concerns about the Applicant’s work, the Applicant was placed on the PIP.
[20] At some point in December 2022, Ms. Dennis asked the Respondent’s cyber team to conduct a review of the Applicant’s cyber activity from the period October to December 2022. A copy of the review report was provided as evidence. The report was in three parts. The first part related to the ‘daily activity’ of the Applicant. That recorded the first and last event on the Applicant’s computer on any given day. The second part gave details of ‘hourly activity’, that is user activity broken down by the hour. The third part of the report related to ‘VPN activity’ broken down by day. The report contains a number of qualifications including that in relation to VPN usage, an acknowledgment that many users do not use the VPN unless required due to bandwidth issues.[14]
[21] Ms. Dennis’s evidence was that this review disclosed that the Applicant:
(a) averaged 48.6 keystrokes per hour for the period between 1 October 2022 to 31
October 2022 (October Period) and had 117 hours during working hours with 0 keystroke activity during the October Period;
(b) averaged 34.56 keystrokes per hour for the period 1 November 2022 to 31
November 2022 (November Period) and had 143 hours with 0 key stroke activity
during the November Period;
(c) averaged 80 keystrokes per hour for the period between 1 December 2022 to 16
December 2022 (December Period) and had 60 hours with 0 key stroke activity
during the December Period; and
(d) only exceeded 1,000 keystrokes in a one-hour period, being at 11:00 am on 10 June 2022 when 1,830 keystrokes were registered. 1,830 keystrokes amount to approximately half a page of text.[15]
[22] According to Ms. Dennis’s statement:
To perform the inherent requirements of Ms Cheikho’s role she would have to be working on her laptop, as Ms Cheikho’s position required her to engage with various stakeholders via email and Teams. She was also required to access documents on IAG file drives and Sharepoint, and track progress of work on platforms such as Planner and Jira, which are all required to be accessed on an IAG laptop device as passwords need to be entered and the VPN (virtual private network) needs to be connected on the IAG laptop device. Ms Cheikho could not perform these tasks (which were an essential part of her Position) on any other device (including for example, her personal mobile device).
As such, I would expect that there would be at a minimum more than 0 key stroke activity during each working hour (other than potentially where Ms Cheikho was attending a meeting where she may be focusing and contributing rather than typing on her laptop) and that as her role required data input and correspondence with various stakeholders, her key strokes per hour would be upwards of 500 key strokes per hour.[16]
[23] Ms. Dennis said that the results of the cyber review were made known to the Applicant at a meeting on 2 February 2023 with the Applicant and her union representative. The Applicant was notified of the meeting by letter dated 1 February 2023 which set out that the meeting was to discuss allegations of misconduct. Details of the alleged misconduct identified by the cyber review were included in the letter. At the meeting, the Applicant requested time to respond to the allegations in writing. The Respondent gave the Applicant until 8 February to provide a response and she did so by email dated 8 February.[17] No documentary evidence was provided by the Applicant to the Respondent to contradict the allegations that had been levelled against her.
[24] Ms. Dennis’s evidence was that following receipt of the Applicant’s response a ‘show cause’ letter[18] was sent inviting the Applicant to either attend a further meeting on 13 February or provide a further written response by the following day. The letter said that based on the available information, the Respondent’s view was that the allegations had been substantiated, that the conduct constituted a breach of the Respondent’s Code of Conduct and Ethics and that the Respondent’s preliminary view was that the Applicant’s employment should be terminated. The letter indicated that the purpose of the meeting was to invite the Applicant to show cause why termination of employment should not follow.
[25] The Applicant chose to provide a further written response.[19] The response included a letter of support from the Applicant’s doctor dated 14 February 2023 which made reference to a diagnosis which had significantly impacted the Applicant’s sleep, memory and day to day functioning. In relation to the central allegation of misconduct, the Applicant’s response included the following:
In response to the OUTCOME OF FORMAL MEETING AND INVITATION TO SHOW CAUSE letter I would like to confirm a few of the points please see the following:
…
You “could not recall why or how [the data] it’s that low” – I was confused and shocked when presented with the data. I do doubt the accuracy of the data presented and also confirmed I have used other devices other than my laptop to log in and complete work when I had system issues. I am sure I have been logging on time most of the days and if I was ever late I would log back on later to complete my hours.
- You had gone through your emails and messages to try to explain it – I did experience a lot of system issues over the last few weeks of last year but I had advised of these errors. This is why I tried to retrieve emails to match dates up but was unsuccessful.
[26] Ms Dennis’s evidence[20] also went to other concerns with the Applicant’s conduct relating to incomplete tasks that had come to light after the disciplinary process had commenced. These concerns were conveyed to the Applicant in writing.[21] It is not necessary to recount these issues in any detail.
[27] The Applicant’s employment was ultimately terminated at a meeting between the Applicant, Ms. Prior and Ms Dennis on 20 February 2023.
‘Valid Reason’ – General Principles
[28] In order for there to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[22] and should not be “capricious, fanciful, spiteful or prejudiced.”[23] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[24]
[29] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[25] “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”[26]
Findings
[30] The evidence demonstrates 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. Nor was the Applicant able to do so in the course of these proceedings. In cross-examination the Applicant accepted that she had access to the systems and records of the Respondent from the time the allegations were put to her. This would have assisted the Applicant with any efforts she might have made to show that she had been working as required during the relevant period. However, there was little put forward by the Applicant that assisted her argument that the cyber records were inaccurate. The Applicant did not adduce evidence as to the work that she actually performed during the relevant period in October to December 2022. The Applicant asserted that on occasions she may have used other devices such as her mobile phone to perform some tasks. The evidence in this respect, such as it was, did not cast into any significant doubt the evidence provided by the Respondent, including the evidence of Ms. Dennis as to the need for the Applicant to use her laptop to do the range of duties required of her. 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.”
Extract from Cheikho v Insurance Australia Group Services Limited [2023] FWC 1792 delivered 21 July 2023 per Roberts DP