A Full Bench of the FWC has upheld an appeal against the decision of Commissioner Hunt in relation to the dismissal of an employee who refused to provide his biometric data at work. The Full Bench upheld the following grounds of appeal advanced by the applicant in the matter, Mr Lee:
- Ground 1 – The finding that failure to comply with the Policy was a valid reason for dismissal, given potential breaches of the Privacy Act and despite the finding that Mr Lee was entitled to refuse to provide his biometric data.
- Ground 2 – The finding that Mr Lee’s dismissal for protecting ownership of his sensitive information was not harsh, unjust and unreasonable in circumstances where he was threatened with dismissal for refusing to allow the collection of his biometric data.
- Ground 5 – The finding that the introduction of biometric scanners was reasonably necessary.
- Ground 8 – The finding that there was no breach of the Privacy Act with respect to the collection of information from Mr Lee, because his data was never collected.
The Full Bench decided to rehear Mr Lee’s unfair dismissal application and in so doing, concluded that:
It is apparent from the above that Superior Wood did not have a valid reason for the dismissal which related to Mr Lee’s capacity or conduct. This is a significant factor in the circumstances of this case. As we have also concluded, some relevant matters weigh neutrally, some weigh against a finding that dismissal was unfair and others weigh in favour of such a conclusion. However the procedural fairness matters do not weigh so heavily in favour of a finding that the dismissal was not unfair as to outweigh the significance of an absence of valid reason. After all, Superior Wood was procedurally fair in effecting the dismissal for a reason that was not valid and in contravention of its obligations under the Privacy Act. Therefore for the reasons set out above, on balance we find that Mr Lee’s dismissal was unjust. It was unjust because Mr Lee was not guilty of the conduct alleged. As the direction was unlawful he was entitled to refuse to follow it. Mr Lee was unfairly dismissed.
The Full Bench remitted the matter to Commissioner Simpson to determine what remedy, if any, Mr Lee should be awarded for his dismissal.
Read our article from 24 January 2019 below.
APPEAL ALLOWED FOR EMPLOYEE WHO SAID NO TO BIOMETRIC SANNCERS
An employee dismissed because he refused to use biometric fingerprint scanners introduced by his employer has been granted permission by the Full Bench of the Fair Work Commission to appeal the unfair dismissal decision which went against him late last year.
The company, Superior Wood Pty Ltd, operates two sawmills in Queensland. It had introduced biometric fingerprint scanners in order to record employees being on site in accordance with its Site Attendance Policy. The employee, Mr Lee, refused to use the scanners, arguing he owned the biometric data collected and stored by the scanners. Mr Lee said the data was sensitive personal information which could not be obtained by his employer without his consent. Between November 2017 and February 2018, meetings were held between Mr Lee and his managers to discuss his concerns. He continued to refuse to use the scanners and proposed to use the existing paper-based sign-in system or a swipe card instead. The company ultimately dismissed Mr Lee on the grounds his refusal to use the scanners amounted to a failure to comply with a lawful and reasonable policy direction.
When this case was brought to the Fair Work Commission at first instance, Commissioner Hunt agreed with the employer, finding that Mr Lee’s dismissal was not harsh, unjust or unreasonable. The Commissioner found that while the company may have breached the Privacy Act in the manner it went about trying to obtain the consent of employees to collect their data, this did not mean the Site Attendance Policy was unlawful. Commissioner Hunt determined Mr Lee had failed to comply with his employer’s reasonable request to implement the Policy, thus providing a valid reason for his dismissal.
What the Full Bench found
Mr Lee sought permission to appeal Commissioner Hunt’s decision. The Full Bench of the Fair Work Commission decided to grant permission to Mr Lee, finding there was an arguable case of appealable error. The Full Bench cited the question of whether the requirement to comply with the Site Attendance Policy was lawful/reasonable and whether an employee’s refusal to provide consent was in breach of the Policy as among the issues identified. The Full Bench went on to note this was the first occasion the Full Bench has considered the question of 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 work constitutes a valid reason for dismissal, describing the issues involved as “important, novel and emerging”.