FWC upholds termination of remote worker for failing to undertake required duties

FWC upholds termination of remote worker for failing to undertake required duties

FWC upholds termination of remote worker for failing to undertake required duties

The FWC has upheld the termination of a female insurance employee dismissed for failing to sufficiently attend to her duties over several months whilst working from home. The case highlights the need for employers to closely monitor the work activities of employees working remotely.

The employee ‘SC’ commenced employment with industry giant Insurance Australia Group Australia Services Limited (“IAG”) on 16 May 2005 until her dismissal for misconduct on 20 February 2023.

She was employed on a full-time basis, and since January 2017, she has been employed in the role of Consultant, Outbound Comms Disclosure in the Direct Insurance Australia Outbound Comms Team.

Many of IAG’s employees work remotely, but following the end of the COVID-19 pandemic, the company encouraged employees to start attending work at the office. SC chose to work from home on an almost permanent basis.

During 2022 SC’s managers became concerned about several issues with her performance, including failing to deal with allocated tasks, missing deadlines, missing meetings, being absent and uncontactable, and failing to lodge a product disclosure statement with the industry regulator.

After several discussions with her, she was placed on a Performance Improvement Plan (PIP), but there was no discernible improvement in her performance. IAG decided, as part of her PIP, to monitor activity on her company-provided laptop during the period of October to December 2022.

The review of her laptop activity disclosed that she:

  • Failed to work her designated 7.8 hours for 44 working days out of 49;
  • Failed to begin work at her designated start time on 47 working days out of 49;
  • Failed to finish at or after her designated finishing time of 4 pm on 29 working days out of 49;
  • Failed to perform any work (zero hours) on 4 days out of 49 working days.

Further, during the days she was logged on, there was very low keystroke activity on her laptop, indicating she was not presenting for work or performing work as required.

SC failed to provide an adequate explanation for the lack of work activity on her part.

IAG’s view was that she had failed to perform the inherent requirements of her work during her designated working hours. They also felt that her failure to perform her duties placed additional pressure on work colleagues, which created a work health and safety risk for them.

Consequently, she was terminated.

As noted by Deputy President Tom Roberts,

“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 allegations … she was unable to provide a credible explanation … In my view the evidence establishes that there were extended periods where the Applicant was not working as she was required to…”

In dismissing the application, the Deputy President noted,

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

The unfair dismissal application was dismissed.

SC v Insurance Australia Group Services Limited (U2023/2059)

For queries about employees working remotely, monitoring performance, Performance Improvement Plans, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 364.0723

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