Workplace Surveillance in NSW: Key stroke tracking and your employees

Surveillance in the workplace, is largely an accepted and understood part of the Australian workplace in some way, shape or form. The most common form of workplace surveillance would be by camera but it is not limited to this. In a previous employment law update we wrote about how recorded phone conversations were successfully utilised by an employer to dismiss an employee who’s conduct during these calls was so offensive that it was sufficient grounds for a summary dismissal. The case of Suzie Cheikho v Insurance Australia Group Services Limited [Cheikho v IAG], is another employment law matter that hinged on workplace surveillance, in the form of key-stroke logging.

Cheikho v IAG Limited is a recent Fair Work Commission case in which an unfair dismissal matter was brought before the FWC by Ms Cheikho after she had been dismissed by IAG for workplace misconduct. Ms Cheikho alleged that she had been unfairly dismissed and was seeking compensation.

Ms Cheikho, was a long-term full-time IAG employee for nearly 18 years, who had transitioned to working from home as a result of the Covid-19 Pandemic. In late 2022, IAG, as did many employers began to advocate for employees to the workplace and to reduce the number of employees working remotely. Ms Cheikho declined to return to the office and continued to work remotely.

The crux of the matter and the reason she was dismissed came as a result of IAG’s ongoing workplace surveillance, namely by using keystroke logging to generate a review of Ms Cheikho’s activity while working remotely. IAG conducted the review into Ms Cheikho’s conduct as part of the performance improvement plan she had been placed on after her failure to complete an assigned task over a four week period saw ASIC issue a fine to her employer.

The review for the October – December period showed that Ms Chiekho consistently did not work the full day, started late, finished early and on 4 separate days did not do any work. The keystroke logging also showed that there was very low keystroke activity on her laptop, which indicated that she was not performing the work as required. IAG alleged that Ms Chiekho’s failure to do her job posed a work health and safety risk to other IAG employees as they were required to make up the work when Ms Chiekho missed deadlines and failed to communicate with her co-workers.

Ms Cheikho was terminated by IAG on 20 February 2023, as a result of her workplace misconduct. 

Key takeaway

The case of Cheikho v IAG is significant as it has made employers aware of their ability to monitor and track the performance of employees working remotely and also that the cyber data gathered can serve as a strong source of evidence in the event an employer needs to contest an unfair dismissal claim brought against them. However, an employer’s ability to conduct workplace surveillance is limited by an employer’s workplace surveillance policies and their employment contracts.

Key stroke tracking is an efficient means to monitor employee performance and is a  form of workplace surveillance permitted under the Workplace Surveillance Act 2005 (NSW). As with other forms of workplace surveillance, an employer must provide an employee with 14 days written notice of how the surveillance will be carried out prior to the commencement of the surveillance and must provide the notice to new employees prior to them starting work.

This article is general in nature and is not legal advice. If you need help with an Employment Law matter or require assistance with updating your workplace procedures and policies, Voice Lawyers hear you. We help people navigate the complexities of the Fair Work Act and workplace laws with confident, practical advice.

If you would like to attend one of our Employer breakfasts or have one of our lawyers present on the Respect @ Work requirements or provide other workplace training email us on voice@voicelawyers.com, give us a call at 02 9261 1954 or use the link on our website to book a consultation to speak with one of our lawyers.