“I’ll be back”…Employee wins bid to appeal biometric scanning decision “I’ll be back”…Employee wins bid to appeal biometric scanning decision

Filters

“I’ll be back”…Employee wins bid to appeal biometric scanning decision

22 March 2019 | Employer's Liability

Technology in the workplace has again raised new issues for the Fair Work Commission's unfair dismissal jurisdiction, after an employee wad dismissed for refusing to use his employer's biometric fingerprint scanning to record site attendance. While his unfair dismissal application was dismissed at first instance, the employee has been granted leave to appeal the decision to the Full Bench.

In Issue

  • Was the collection of employees’ biometric information consistent with obligations under the Privacy Act?
  • Was the introduction of the employer’s Site Attendance Policy just and reasonable?

The Background

In October 2017 Superior Wood, which operates sawmills in Queensland, announced the introduction of biometric scanners at its sites to record on-site attendance. The purpose of the system was improve the integrity and efficiency of the payroll process, as well as improve safety (namely, being able to quickly identify who was on site in the case of an emergency).

Mr Lee, who was employed as a casual General Hand, refused to use the scanners due to concerns that 'sensitive information' (being the biometric data) could be leaked or misused, and was in breach of the Privacy Act.

After multiple meetings to discuss his concerns, Mr Lee was dismissed for failing to follow a lawful and reasonable instruction.

The Decision at Hearing

At first instance, Commissioner Hunt found that the Site Attendance Policy was not unjust or unreasonable, stating that “It is entirely reasonable for the employer to improve upon an inherently unsafe obligation..”  The improvement to payroll integrity and efficiency was also a persuasive factor in the Commissioner’s decision.

While critical of Superior Wood’s failure to provide a 'collection notice' to employees, as well as the absence of a Privacy Policy, the Commissioner found that this did not render the policy unlawful.

Finding that Mr Lee’s objection to the policy was unreasonable, taking into account the improvements to payroll and health and safety, and the alternatives that would have been required to accommodate his objection, the unfair dismissal application was dismissed.

The Issues on Appeal  

Mr Lee sought permission to appeal the decision on the grounds that the Commissioner erred in finding a valid reason for the dismissal, and that the appeal was in the public interest, given that the decision involves the use of 'sensitive information'.

The Full Bench was satisfied that there was an arguable case of appealable error, in respect to whether the Policy was lawful and/or reasonable, and the application of the Privacy Act. The Full Bench noted that, "...this is the first occasion the Full Bench of the Commission has considered...whether the refusal of an employee to provide their biometric data through the scanning of fingerprints for the purposes of recording a person's presence at the workplace, constitutes a valid reason for dismissal...We are satisfied that the appeal raises important, novel and emerging issues, not previously the subject of Full Bench consideration or guidance."

Implications for you

While employers have a right to manage their business, the introduction of any policy must be both lawful and reasonable. Technology is playing an increasing part in the employment space, so employers must be aware of their obligations, particularly with respect to privacy.

Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB 95

Corrina Dowling

Corrina Dowling

Special Counsel