Lessons from the unfair dismissal case involving a worker sacked for not doing enough while WFH

A recent Fair Work Commission (FWC) decision has added new fuel to the ongoing discussions between businesses and their employees about the ability to productively work from home. 

The unfair dismissal application, brought by an employee who was dismissed after her employer found low keystroke activity while monitoring her laptop, was rejected by the FWC, which found the termination to be the result of a valid reason of misconduct.

The case comes as many large and small employers are seeking to have employees return to the workplace after the popularity of hybrid arrangements following COVID-related lockdowns.

Monitoring employee output

Keystroke technology has been implemented by some organisations offering hybrid or flexible work arrangements as a management tool to monitor productivity. Among other things, it is used to measure the number of times an individual presses a key on their keyboard during a recorded period. 

In this case, the employer claimed a review of the employee’s cyber activity found “significant periods where no or minimal keyboard activity was evident”, including 143 hours in a month with zero keystrokes. Concluding that the employee was not performing the inherent requirements of their role and there were serious issues related to conduct, the FWC was satisfied that the dismissal was not harsh, unjust or unreasonable.

Legally, there is no inherent difference in an employer’s ability to monitor the output of their employees whether they work from home or the office. In both settings, employers generally trust employees to conduct the work required of them and are entitled to monitor whether they are doing so.

Further, employers have a general right to monitor and review output as it relates to an employee’s performance.

What the decision means

While this case concerns an employee whose productivity was not satisfactory while working from home, it confirms that employers are able to monitor their employee’s performance regardless of the employee’s location.

While many employers and industry groups are exploring ways to get employees to return to working at offices, this is often based on a misunderstanding that employees will always be more productive in an office setting or that productivity is easier to measure in an office setting.

The reality is that there is an element of trust in an employment relationship whether an employee is at home or the office, and employers are entitled to monitor output whether an employee is at home or at the office.

Andrew Jewell is a principal at Jewell Hancock Employment Lawyers.