This article concerns a fascinating development in Australian employment law around the collection of sensitive information from employees following the decisions of the Fair Work Commission in Jeremy Lee v Superior Wood Pty Ltd.
Superior Wood operated two sawmill sites in Queensland. Mr Lee was employed at Superior Wood as a general factory hand on a casual basis.
In October 2017, Superior Wood announced to employees it would introduce ‘biometric’ (fingerprint) scanners to record employees’ attendance on site. Superior Wood directed its employees to provide their fingerprint so that it could implement the scanners.
Between November 2017 to February 2018, Mr Lee refused to provide his fingerprint and use the scanners on the basis that he did not want to give up his personal information. In essence, Mr Lee viewed his biometric data as his personal property and held the view that he and only he had the right to control that property.
On 12 February 2018, Superior Wood dismissed Mr Lee for refusing to follow its direction to use the scanners.
Decision at first instance
Mr Lee made an application to the Fair Work Commission alleging he had been unfairly dismissed.
At first instance, Commissioner Hunt found that Superior Wood had a valid reason to terminate Mr Lee’s employment, being that Mr Lee refused to follow the direction to use the scanners. After considering a number of other factors, Commissioner Hunt found that the dismissal was not unfair.
Mr Lee appealed that decision and on appeal, the Full Bench of the Fair Work Commission overturned Commissioner Hunt’s decision and found that the dismissal was unfair.
The Full Bench considered whether the direction to use a biometric scanner, and therefore a direction for Mr Lee to provide his biometric data, was a ‘lawful and reasonable’ direction. Failure to follow a lawful and reasonable direction will often be considered a valid reason for dismissal.
Privacy Act 1988 (Cth)
The Full Bench found that Superior Wood had failed to follow its obligations under the Privacy Act when it directed Mr Lee to provide his biometric data.
Importantly, biometric data is ‘sensitive information’ for the purposes of the Privacy Act. The Full Bench found that Superior Wood required Mr Lee’s consent before it collected his sensitive information. Mr Lee was unwilling to provide his consent and therefore did not have the right to collect his sensitive information.
The Full Bench also found that Superior Wood should have provided more information to Mr Lee and other employees of Superior Wood about the collection of their sensitive information.
The Full Bench concluded that the way in which Superior Wood implemented the scanners was unlawful because it was in breach of the Privacy Act. Therefore, the direction to use the scanners was not a ‘lawful’ and reasonable direction. Instead, the direction was unlawful. Accordingly, the failure to follow the direction was not a valid reason for dismissal and the dismissal of Mr Lee was unfair.
Mr Lee was eventually awarded six (6) months compensation for the dismissal, being the statutory cap that the Commission could award him.
The ramifications of the decision are important for employees and employers. Both parties need to consider their obligations and rights under the Privacy Act regarding sensitive information.
Employees should consider when their employer is asking them to provide sensitive information. If the employer is asking the employee to provide sensitive information, then an employee may have the right to refuse that direction if they have not provided consent for the sensitive information to be collected. Employees should consider any policies and contracts they have agreed to, as they may have provided consent when they agreed to those documents.
Employers should be aware that if an employee does not give consent to the collection of sensitive information, then its likely an employer’s direction to provide sensitive information will not be a lawful direction. Employers can rectify this issue by having a policy or contractual term that deals with the collection of sensitive information and asking employees to agree to those terms on commencement of employment.