Working Hard or Hardly Working at Home? - Unfair Dismissal Claim Falls Short

With the work environment progressively adopting a hybrid approach, it is crucial that employers recognise that employee responsibilities remain consistent both when working remotely and in the office. Early last month a Fair Work Commission case decided that an employee's serious and consistent failure to meet her obligations while working from home constituted misconduct and justified dismissal.

Background

The employer, Insurance Australia Group (IAG), implemented a hybrid approach to work at the end of 2022 allowing its employees the option of working from home. The Applicant, Suzie Cheiko, opted to work from home during this period on an almost permanent basis. IAG alleged that between the period of October to December, the Applicant was not meeting the requirements of her employment with complaints of her performance stretching back to April 2022.

Her colleagues referred to the fact that she had difficulties meeting deadlines, missed meetings and was absent and uncontactable during her work hours. Her employers pointed to the fact that as a result of her failure to perform her duties, IAG had incurred a fine from ASIC arising from her failure to lodge a product disclosure statement. The evidence also established that the Applicant had left home while working to "go to the shops from time to time". Her low keystroke count also supported the evidence. The employee admitted the following:

"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"

Decision

The Commissioner at [28] reiterated that for a dismissal to be valid, the reason for the dismissal must be 'sound, defensible and well-founded' rather than 'capricious, spiteful or prejudiced'. This is a question of fact and will be based on the evidence presented by the parties.

The Commissioner found that the complaints referred to above, namely the Applicant's absence from work, failure to meet deadlines, attend meetings and low keystroke count served to show that the Applicant 'was not working as she was required to do during her designated working hours'. The Applicant had not refuted any of the evidence provided by IAG. Her failure to meet obligations also exposed her employer to penalties and posed ongoing risks to customers of IAG and the public broadly.

"The failure of the Applicant to attend to her duties in that period was not of a minor or incidental nature. It was on a scale and at a sufficient level of seriousness to constitute misconduct."

However the Commissioner did raise some factors in favour of the Applicant per section 387(h) of the Fair Work Act showing that the dismissal may have been unfair. These consisted of:

  • the significant and adverse effect of dismissal on the Applicant's personal and economic situation;
  • personal traumatic setbacks 18 - 24 months prior to termination which was reflected in her poor mental health; and
  • her long and satisfactory work performance in the years preceding her termination.

The deciding factor here as noted above was the Applicant's failure to diligently attend to her duties. The consistency and seriousness of the Applicant's conduct while working from home constituted misconduct. Hence, the Commissioner found that the dismissal was justified notwithstanding the factual matters in the employee's favour.

Key Takeaway

  • If employers can prove that employees are not working diligently and inattentively from home, they are justified in dismissing that employee

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.