In a recent case, Lee v Superior Wood Pty Ltd [2019] FWCFB 2946, the Full Bench of the Fair Work Commission (“FWC”) held that an employee was unfairly dismissed for refusing to follow his employer’s direction to consent to provide his fingerprint and biometric data.
Mr Lee was employed by Superior Wood Pty Ltd (“Superior Wood”) for approximately 3.5 years when he was dismissed for failing to comply with a newly implemented Site Attendance Policy (“the Policy”) which required employees to use fingerprint scanners to sign in and out of the worksite.
Mr Lee refused to provide his fingerprint due to concerns about the protection of his biometric data.
Commissioner Hunt heard the matter at first instances and found that the Policy was not unjust or unreasonable and Superior Wood had the right to require employees to comply with it. It was found that although Mr Lee was entitled to withhold his consent, in doing so, he failed to meet a reasonable and lawful request of his employer and this constituted a valid reason for dismissal.
The decision was overturned by the Full Bench of the FWC on appeal.
The Full Bench held that the Policy did not form part of Mr Lee’s employment contract which only bound Mr Lee to policies that existed at the time the contract was signed. As the Policy was not a term of Mr Lee’s employment, Mr Lee’s obligation to comply with the Policy depended on whether the direction to do so was “reasonable and lawful”. The Full Bench held that the direction given to Mr Lee was not lawful as it infringed on Mr Lee’s rights under the Privacy Act 1988.
Schedule 1 of the Privacy Act 1988 contains the Australian Privacy Principles (“APP”). APP 3 deals with collection of solicited personal information and prohibits the collection of sensitive information about an individual, unless that person consents to the collection of the information. The Full Bench held that construed in context, APP 3 applies both to the solicitation and collection of sensitive information. It necessarily operates at a time before collection, because an APP entity ‘must not’ collect sensitive information ‘unless’ the individual consents to that collection. It was found that any collection that occurs without first having obtained consent to that collection would be contrary to APP 3. The Full Bench considered that as Mr Lee was directed by Superior Wood to submit to the collection of his fingerprint data in circumstances where he did not consent to that collection, that direction was inconsistent with APP 3. It was noted that any consent provided by Mr Lee once he was informed that he may be disciplined or dismissed for failing to provide consent would likely not be considered genuine consent.
The Full Bench held that the dismissal was unjust as there was no valid reason for dismissal.
