Employee data collection – appeal against important Fair Work Commission decision

Readers may recall our article last year regarding data collection and consent, in the context of the unfair dismissal decision of Jeremy Lee v Superior Wood Pty Ltd T/A Superior Wood [2018] FWC 4762 (Primary Decision). The Fair Work Commission (FWC) found that the refusal of Mr Lee to use biometric scanners at the workplace was a valid reason for the termination of his employment. The FWC in the Primary Decision found that Mr Lee’s dismissal was not harsh, unjust or unreasonable and his application was dismissed.

Advances in technology are proving to be of significant benefit to employers in terms of streamlining processes and improving efficiency in the workplace. It is paramount, however, for employers to be aware of their obligations under the Privacy Act 1988 (Cth) (Privacy Act) (if applicable) and to consider potential implications new technologies may have on their business. Especially so, given Mr Jeremy Lee has successfully been granted permission to appeal the Primary Decision.

Grounds for Appeal

The Full Bench of the FWC granted Mr Lee permission to appeal the Primary Decision, without even considering his grounds of appeal in detail. The Full Bench found that the public interest is enlivened by this appeal due to an arguable case of appealable error regarding whether:

• The request to comply with the Site Attendance Policy was lawful and/or reasonable;
• The FWC’s findings as to the application of the Privacy Act were relevant and appropriately balanced with its discretion under the unlawful termination provisions;
• Exemptions under the Privacy Act are relevant relating to employee records;
• An employee’s refusal to provide consent to the collection of sensitive information is a breach of the Site Attendance Policy; and
• Whether consent required by the Privacy Act includes implied consent, in circumstances where employees have registered their fingerprints to be used without first being notified.

The FWC has never considered 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 the workplace, constitutes a valid reason for dismissal.

Take Home Messages

The appeal decision may shed light on employees’ rights to privacy and ownership of their sensitive information. It may also guide employers as to whether they can lawfully dismiss an employee for refusing to provide consent for collection and use of certain data, even for reasons concerning work health and safety. As employers adopt emerging or developed technologies in the workplace, we encourage employers to have an appropriate policy framework in place. We will continue to provide updates on this emerging issue.