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Are your directions lawful and reasonable?

OPINION - With advances in technology, workplaces are changing at a rapid rate and the manner in which work is performed is also changing. Business are looking for ways to improve performance and efficiency and embracing technological advances is one way this is occurring. However, this can result in unexpected consequences.

Businesses are looking for ways to improve performance and efficiency by embracing technology, however, this can result in unexpected consequences. [Source: Shutterstock]
Businesses are looking for ways to improve performance and efficiency by embracing technology, however, this can result in unexpected consequences. [Source: Shutterstock]

In Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB 2946, the Full Bench of the Fair Work Commission determined that a direction given to an employee to provide his fingerprint – his biometric data – was not a lawful and reasonable direction from the employer, and consequently the employee’s refusal to comply with the new company policy was not a valid reason for his dismissal.

Jeremy Lee was employed as a casual General Hand at the Superior Wood Pty Ltd sawmill in Imbil, Queensland for a little over three years. In late 2017 Superior Wood announced the introduction of fingerprint scanners which were to be used for recording employee start and finishing times and linked directly to payroll. Employees were advised in late October 2017 that they were required to register their fingerprints in the new system and from that point on, start using fingerprint scanners to register their attendance at work. Mr Lee was directed to attend a meeting to register his fingerprints on 1 November 2017. He attended the meeting but did not provide his fingerprints, primarily due to concerns regarding security. He continued to work and used the existing sign in/out book to manually record his attendance.

After a number of attempts at conciliation, Mr Lee continued to refuse to provide his fingerprint data and as a result, Superior Wood terminated his employment.

Following his termination, Mr Lee made an unfair dismissal application to the Fair Work Commission. At first instance his application was dismissed, meaning the dismissal was not considered harsh, unjust or unreasonable.

Mr Lee appealed to the Full Bench of the Fair Work Commission.

The Full Bench noted that as fingerprint data had to be provided to Superior Wood for electronic storage, the terms of the Privacy Act and the Privacy Principles applied to Superior Wood in connection to the collection of the fingerprint data. The Privacy Act requires voluntary consent from the employee before the data is taken in order to protect individual privacy from unlawful or arbitrary interference. Superior Wood did not have a Privacy Policy in place and there was no evidence that it was even aware it was required. The Privacy Act was not complied with. The Commission found that the direction to submit to the collection of his fingerprint data in circumstances where Mr Lee did not consent to that collection was not a lawful direction.

In any unfair dismissal matter, consideration is given to the size of the business and the extent to which the employer has (or has access to) dedicated human resources management specialists or experts. These considerations are prescribed in the Fair Work Act 2009.

In this case, the Commission found that there was no evidence that Superior Wood employed a dedicated human resources specialist, but nor was there any evidence that it did not have the means to access specialist advice, had it wished to do so. As a result of this, the Commission noted that Superior Wood was “not aware of and compliant with its obligations under the Privacy Act” but that it should have been.

One of the take home messages from this case is that it is important to seek out and obtain specialist HR advice especially when confronting disciplinary issues. A lack of a dedicated HR person or persons may be seen by the Courts as no excuse for not obtaining such advice and the potential consequences for this lack of advice may be severe.

Joanna Andrew

Joanna Andrew is a Partner of the Adelaide based mid-tier law firm Mellor Olsson Lawyers. She specialises in professional negligence, corporate governance and risk. Here, she advises Boards and Executives and undertakes Board and Director performance reviews. In addition, Joanna, with her team,  also provide advice to Boards in relation to risk management and undertake internal investigations in relation to incidents and complaints with thorough reporting.

She has held a number of Non-Executive Director positions including Independent Chairman on Not-For-Profit, Sporting and Commodity Boards and Committees.

Joanna is a Facilitator for the Australian Institute of Company Directors, Company Directors Course. In 2018 Joanna was recognised as one of the “Indaily’s Top 40 Under 40 Young leaders” in South Australia.

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