Jeremy Lee v Superior Wood Pty Ltd [2019] FWCB 2946 1 May 2019

In today’s work environment employees are now more likely to be tracked and measured (think cctv cameras and data passes).  Employers are obliged to record hours of their staff and have safety and security reasons for tracking such actions.  However, questions are often raised by employees about which such tracking is reasonable. When an employee refuses to comply with the tracking arrangement, can a dismissal based on such refusal be unfair.  In Lee’s case, the refusal to submit to finger print verification as part of workplace policy and the subsequent dismissal based on that refusal was found to not constitute an unfair dismissal.

Lee was employed as a general hand at Superior Woods (a saw milling operation). The employer wished to introduce fingerprint scanning technology to replace the sign in/sign out sheets to record employee attendance.  Announced as a safety measure, the real benefit to the employer was in the simplification of its payroll system by automating the collecting of work hours by employees.

Mr Lee refused to his consent to provide his ‘bio metric’ data to his employer.  His concern was in relation to the use an storage of his data.  Mr Lee being the only person to refuse the request to provide his data, posed a dilemma for his employer’s new payroll/safety plans.  After repeated requests to provide the data, Mr Lee’s employment was terminated.

In his unfair dismissal claim, the Commission found that the direction to give the ‘fingerprint’ was reasonable which supported the subsequent action of the employer in dismissing Mr Lee.  This decision was appealed to the full bench of the Fair Work Commission.

The Full Bench, investigated with the original request was lawful particularly in light of the application of the Privacy Act.  The Employer submitted that the Privacy Act didn’t apply as no record of the fingerprint was taken.  The Full Bench found the request to provide the fingerprint was covered by the Privacy Act, as the act of soliciting the fingerprint was of itself dealing with an employee record and thus subject to the Privacy Act.

The Full Bench observed that the neither the employer or its collection agent, had a privacy policy nor did they adopt a collection procedure which complied with the Privacy Act. Namely, the employer failed to properly give details about the collection nor provide an adequate collection notice as required under the Privacy Act.

The Full Bench then considered whether the Employer had a right to compel an employee to provide the fingerprint by virtue of the employment contract. The Full Bench observed that the employment contract only incorporated the policies relevant at the time of the making of the contract. This drafting issue effectively limited the employer from incorporating new policies and practices into the employment contract.

The Full Bench then considered if direction to give the fingerprint was a reasonable direction from employer to employee.  In this regard, the Full Bench found that the ‘direction’ did not give Mr Lee a meaningful right at all. The direction was akin to a demand which was not justified under the Privacy Act or the employment contract.

Given this, the Full Bench was obliged to consider if the dismissal (based upon an unreasonable direction) was unfair.  In reviewing the relevant criteria (as set out in Section 387 of the Fair Work Act), the Full Bench concluded that the dismissal was not fair.

Take Out

Before introducing important changes particularly changes that may impact privacy of employees, the Employer should review their policies and in particular its privacy policy.  The process of collecting the data should comply with the Privacy Act including the provision of appropriate collection notices.  If the employee refuses the request, the concerns of the employee should be considered and alternatives canvassed.  If the policy is still pressed, the directions may be permissible subject to the criteria of reasonableness.

Written by Cameron Spanner.

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