Lawful and reasonable directions during the COVID-19 pandemic

The Fair Work Commission has recently handed down the decision of Kieran Knight v One Key Resources (Mining) Pty Ltd upholding the dismissal of an employee for refusing to provide information relating to past and future travel plans. 

 

Background

Mr Knight commenced employment with One Key Resources (Mining) Pty Ltd ("the Respondent") in March 2019 as a Recruitment Consultant.

On 6 March 2020, the Respondent sent an email to all employees, requesting they complete a COVID-19 travel survey. The survey requested employees provide details of previous travel history outside of Australia and details of future overseas travel plans.

On 11 March 2020, the Respondent sent a further email to all employees asking that any person who had not completed the survey do so as soon as possible.

On 12 March 2020, Mr Knight sent an email to Mr Glenn Triggs (director of the Respondent) refusing to complete the survey as he did not consider he should be required to provide details of his future or previous travel.

On 16 March 2020, Mr Knight was given a first warning letter directing that he immediately complete the survey. He was informed that if he did not comply with the direction, his employment may be terminated for failing to comply with a lawful and reasonable direction.

Following receipt of the warning letter, there was further discussion between Mr Knight and the Respondent in relation to the survey. Mr Knight requested that the Respondent explain the grounds upon which it claimed it was reasonable and lawful to request he provide the information requested by the survey.

Later on 16 March 2020, Mr Knight's employment was terminated due to his refusal to comply with the lawful direction to complete the survey.

 

Application for Unfair Dismissal

Mr Knight argued that the direction to provide information was in breach of Principle 3 of the Australian Privacy Principles in Schedule 1 of the Privacy Act 1988 ("the APP") and that the request was neither a lawful nor reasonable direction.

Principle 3 of the APP prohibits the collection of sensitive information about an individual, unless that person consents to the collection of the information, and the information is reasonably necessary for one or more of the entity's functions or activities. "Sensitive information" is defined in section 6 of the Privacy Act 1988 to include information or an opinion about the health of an individual.

Relevantly, Principle 3 of the APP carves out the need for consent in relation to the collection of sensitive information when a "permitted general situation" exists. According to section 16A of the Privacy Act 1988, a "permitted general situation" exists if it is unreasonable or impracticable to obtain the individual's consent to the collection, use or disclosure of personal information; and the entity reasonably believes that the collection, use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or the public.

Mr Knight argued that the survey requested information for the purpose of assessing the health risk of Mr Knight and that it was sensitive information.

Mr Knight relied on the decision of the Full Bench in Lee v Wood [2019] FWCFB 2946 where it was held that a direction to an employee to submit to the collection of his fingerprint data, in circumstances where he did not consent to that collection, was not a lawful direction. In that case, it was found that any consent that the employee might have given once told that he faced discipline or dismissal would have been vitiated by the threat and would not have been genuine consent. On this basis, Mr Knight argued that after the warning letter was issued, he could not genuinely consent to providing the information and therefore the direction was not lawful or reasonable.

The Fair Work Commission was required to consider whether the survey required Mr Knight to provide sensitive health information. If so, Principle 3 of the APP would require consent prior to collection, unless a permitted general situation existed.

The Fair Work Commission held that the information requested by the survey was not sensitive information. The survey only requested travel information and did not ask for a description of any symptoms that might indicate whether an employee had contracted COVID-19.

The Fair Work Commission considered that even if the survey did request sensitive health information, the necessary criteria for a permitted general situation exemption were met. The Fair Work Commission found that in the circumstances of the COVID-19 pandemic, it was unreasonable to require the Respondent to obtain Mr Knight's consent and that the Respondent reasonably believed that collecting the information was necessary to prevent a serious threat to life, health or safety.

The Fair Work Commission dismissed Mr Knight's application for an unfair dismissal remedy.

 

Lessons

This case is an important reminder that employees can be directed to comply with lawful and reasonable requests, particularly where the purpose of the direction is to ensure the safety of the workforce. Employers should be careful to only request information that is reasonably necessary. If you are unsure of what information you can lawfully request from your employees, please contact us.

 

 

Liability limited by a scheme approved under Professional Standards Legislation