In a landmark decision, the Fair Work Commission Full Bench (FWCFB) has held that a worker was unfairly dismissed for refusing to use sign-in fingerprint scanners at work. In upholding the workers’ appeal, the FWCFB found that the direction to use the scanner, while important for safety and more efficient, was unlawful as it did not comply with the Privacy Act 1988 (Cth) (Privacy Act). The case of Jeremy Lee v Superior Wood Pty Ltd  FWCFB 2946 is important for all employers looking to introduce data collection technology in the workplace, and how any refusal to participate in that process should be managed.
The employee was employed by a timber manufacturing company as a casual general hand. In 2017 fingerprint scanners were introduced for employees to use when signing in and out of shifts. The employee refused to register his fingerprints and expressed his concern about the control of his biometric data and the inability of the employer to guarantee no third party access to the data. He was assured by the scanner’s supplier that the collected data would only be used for linking payroll numbers to a clock in/out time. However, the employee continued to resist use of the scanners and, after being issued a verbal and subsequent written warnings, was dismissed from his employment.
The legal issues
The employee initially lost his case before a single commissioner in the Fair Work Commission because he failed to prove his dismissal was harsh, unjust or unreasonable. This was because his conscientious objection to the biometric data being used by the employer was not characterised as a lack of consent. Rather his objection was seen as unreasonable considering one of the stated purposes of the Site Attendance Policy was to ensure worker safety in an emergency situation and to improve payroll efficiencies and integrity in verifying when workers clocked on and off. In addition, the worker had been repeatedly warned that his failure to use the biometric scanner would result in his dismissal.
On appeal, the employee raised nine grounds of appeal, mainly centred on arguments that the scanner system was a potential breach of the Privacy Act and that it was not reasonably necessary for the system to be installed. The employee argued this position rendered the reason for the dismissal (for refusing to comply with the direction in the employer’s Attendance Policy to use the system to sign in and out of work) invalid. The employee also argued that there had been a mistake of fact in finding that the scanners improved safety at the workplace.
To determine the appeal, the Full Bench considered whether the employer’s direction was reasonable and lawful, taking into account the Australian Privacy Principles (Principles) scheduled to the Privacy Act. The Principles provide for ‘open and transparent management of personal information’ and prohibit the collection of sensitive information unless it is reasonably necessary for the entity’s function or activities and the individual consents to the collection.
However, the FWCFB did maintain the finding that scanners could improve safety at the workplace by providing an accurate record of attendance on site. This is an interesting finding where the FWCFB also acknowledged the potential risks of collecting and retaining that information, reflecting the conflict between workplace safety and privacy concerns.
Employment law lessons
This decision is an important reminder for employers to ensure that data collection in the workplace, even if it could improve safety and efficiencies, is only used if necessary and is carried out in compliance with the relevant privacy legislation. With new and emerging technology being utilised in workplaces, employers must take care to have regard to privacy concerns and employee consent, especially before making any dismissal decisions based on a refusal of an employee to submit to the technology.
In terms of privacy law issues, it will be interesting to see if the privacy regulator takes any action with the employer. Stay tuned for our upcoming article which will examine the privacy law aspects of this decision in more detail.
Author: Megan Cant & Ushna Bashir
Michael Selinger, Partner
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Published by Megan Cant, Ushna Bashir