Watch this space – FWC puts a question mark next to biometric scanner dismissal

In brief

In a new and novel case for the Full Bench of the FWC, an employee was given permission to appeal after being dismissed for refusing to use a biometric scanner.¹ Senior Associate Tegan Ayling and Lawyer James Daniel report.

How does it affect you?

Once the appeal is decided, this case will raise interesting issues in relation to the interaction between technology, privacy and employment.

Background

Jeremy Lee worked for Superior Wood at a sawmill in Queensland. In October 2017, for reasons of safety and payroll efficiencies, Superior Wood decided to move from a paper-based 'sign in' and 'sign out' system to biometric scanners. It implemented a policy requiring all employees to use the scanners to sign in and out. Everyone agreed to use the scanners, except Mr Lee. Although the scanners did not take a fingerprint, he was concerned about the collection and storage of his personal information. He was eventually dismissed for not complying with policy in refusing to use the new system.

Mr Lee made an unfair dismissal application, claiming that Superior Wood did not have a valid reason for his dismissal, because the policy was unlawful, and the direction to comply with it was not a lawful and reasonable direction.

Initially, the FWC decided that Mr Lee had not been unfairly dismissed, finding it was reasonable for Superior Wood to request the biometric data from its employees. Even though it may have breached its privacy obligations, there were safety benefits from the biometric system, as managers could have real-time access to information about which employees were on-site. There were also clear payroll efficiencies. While Mr Lee was entitled to refuse consent to collect his biometric data, this meant he was in breach of the policy. He appealed.

The decision

The Full Bench of the FWC granted Mr Lee permission to appeal, particularly given that the case was of public interest, and raised novel and important issues concerning the refusal to provide biometric data. This is an issue that the Full Bench has not previously had to consider.

The Full Bench also considers that there is an arguable case about whether the request to provide biometric data is lawful and reasonable, the application of privacy legislation in this case, and whether refusing to consent to the collection of sensitive information would be a breach of policy.