Work from home (WFH) cases - it is all about trust and genuine management

Two recent cases have shown a willingness for FWC to uphold an employer’s right to dismiss when an employee fails to comply with company WFH policies and procedures.

In the first case (Suzie Cheikho v Insurance Australia Group Services Limited [2023] FWC 1792) the employer was able to demonstrate through key stroke activity surveillance software that the employee, who had 17 years of previous service, was inactive for 90% of her allotted work hours over a 3 month period and had committed an act of misconduct not requiring previous warnings to dismiss.

In the second case (Chantelle Major v Strata Management Group Pty Ltd [2023] FWC 2276) the employer was able to demonstrate that an employee working from home without permission was a valid reason for dismissal after the employer was alerted by its landlord’s agent that employee hadn’t turned up to her designated offices for 3 weeks as it required her to do. Whilst the employer had flexible work arrangements available it required specific approval – which the employee had failed to seek.

Our thoughts

While commentators have focused on the clever ways in which the employer’s surveillance and systems were able to show the employee was not working, we think the bigger issue is – that more regular ‘catch ups’ or one on one meetings might have had a better opportunity to have sorted this issue out preventatively and more effectively in terms of time, cost and emotional effort. The results were good news for the employers in each case but no one really ‘wins’ by winning an unfair dismissal case.

Action Points

• Employer’s can legitimately require attendance at a designated workplace to conduct work – reinforce your policies and personally explain/ workshop the operational reasons with your direct reports why you need attendance rather than remote working;

• Encourage regular conversations to discuss genuine progress on personal designated productivity goals or outcomes rather than simply analysing ‘hours on the clock’ – workers turning up to the office but not ‘really working’ are equally as ineffective and ‘culture killers’ as employees doing it remotely; and

• As a people manager, do you really know what your employees are doing or are you simply reliant on them ‘turning up’ to conclude they are doing their job? – work out what is really important in terms of leveraging team operational and relationship outcomes and regularly check in on them (ie at least weekly) with each member of your team to ensure they are playing their part.

Edge Legal

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