Biometric scanner dismissal unfair

In brief 3 min read

In April, we reported¹ on Jeremy Lee being granted permission to appeal after he was dismissed for refusing to use a biometric scanner in the workplace.² The Full Bench of the Fair Work Commission has since decided the dismissal was unfair.³

How does it affect you?

• In this case, the employer's failure to be aware of, and compliant with, its privacy obligations substantially contributed to dismissing an employee without a valid reason. Employers should ensure they fully understand, and are complying with, their privacy obligations and how they interact with their rights and obligations regarding employees.
• To avoid having to necessarily rely on a direction to comply with a workplace policy being lawful and reasonable, employers should ensure that employment contracts are drafted to capture compliance with policies that may be implemented in future.

Background

Mr Lee, a sawmill worker employed by Superior Wood Pty Ltd, made an unfair dismissal application, on the basis there was no valid reason for his dismissal because:

• a policy that required employees to sign in and out using biometric scanners was unlawful; and
• Superior Wood's direction to comply with the policy wasn't lawful and reasonable.

The FWC initially decided that Mr Lee's dismissal was fair, despite a potential breach by Superior Wood of its privacy obligations. Mr Lee appealed.

The decision

The Full Bench decided that Superior Wood couldn't require Mr Lee to provide his biometric data in accordance with the policy and his refusal to do so wasn't a valid reason for his dismissal.

Superior Wood had directed Mr Lee to consent to the collection of his biometric data, which was sensitive information for the purposes of the Privacy Act 1988 (Cth). He was told that if he didn't consent, he would likely be dismissed. Compliance with the policy wasn't a term of Mr Lee's employment, so Superior Wood's direction needed to be reasonable and lawful.

The Full Court considered that the direction to comply with the policy was inconsistent with its obligations under the Privacy Act. Superior Wood relied upon the employee records exemption, but the Full Bench made it clear that the exemption only applies to records already held by an employer that relate to a particular individual. The exemption didn't apply in relation to Mr Lee because his biometric data hadn't been collected. This meant that, without Mr Lee's consent, the direction to provide the biometric data wasn't lawful. Further, any consent Mr Lee might have given after being told he would likely be dismissed wouldn't have been genuine.

While Mr Lee was afforded procedural fairness, this didn't outweigh the lack of a valid reason for his dismissal.