Sacked: worker gives biometric scanner the finger

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Sacked: worker gives biometric scanner the finger

An employee was sacked after he refused to use a biometric scanning system to record his attendance. Was the dismissal unfair?

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An employee was sacked after he refused to comply with a requirement to use a biometric scanning system to record his attendance at work.

The Fair Work Commission ruled the employer’s request was lawful and reasonable in the circumstances, and overrode the employee’s concerns about privacy. The employer was, however, criticised for failing to comply with its obligations under privacy legislation.

Facts of case


Jeremy Lee was employed as a regular casual employee at a sawmill. He had a blemish-free employment record. The employer announced it would introduce biometric scanners to record employees’ attendance times at work and track their movements at work. It claimed that previous recording systems it had used had been abused by some employees, and that tracking employees was necessary for health and safety reasons.

Mr Lee objected to using the scanners on the basis of concerns about their collection and storage of his personal information, and refused to use them. He believed third party access to the data would be possible once it was stored. There were extensive discussions between Mr Lee and company managers over about three months before he was dismissed for refusing to use the scanners.

Mr Lee claimed there was no consultation with employees over introducing the scanners, and no reasons provided for introducing them. When he objected, he was told “everyone has to do it”. Several meetings and correspondence with Mr Lee followed, during which the employer claimed that other attendance recording systems, such as swipe cards, could be abused by employees. It said the scanners were necessary for health and safety reasons, for example to locate employees in the event of a fire. The employer disputed Mr Lee’s claim that the scanners recorded fingerprints. 

Mr Lee offered to record his attendance manually in writing, and did so for a while, but the employer said it was uneconomic to have a separate system for a single employee, and no others had objected to using scanners. 

He received both a verbal and a written warning, but continued to use the sign-in book, which the employer claimed was a breach of its site attendance policy. After receiving a final warning, he set out in detail his privacy concerns and offered to use various other types of recording systems, adding that he would not consent to anyone using his biometric data. He claimed that use of the scanners could also be abused by employees. Eventually, the employer dismissed him for his continued refusal to use the scanners. 

At the hearing, Mr Lee agreed that he supplied biometric data to other parties in order to hold a driver’s licence, passport and other documents. The employer conducted on-site drug testing and Mr Lee had agreed to provide samples for that.

The employer claimed that the scanners did not take fingerprints and could not create one. Making an exception for one employee would have entitled others with less honest motives to also claim exemptions. 

Scanners were already used in the employer’s related companies, with no objections from any employee. 

The employer argued that Mr Lee’s employment would only have continued for a further two to four weeks if he had not been dismissed, because of his refusal to comply with the policy.

Privacy issues


The other significant aspect of this case was the impact on employers of the Australian Privacy Principles (APPs) within the Privacy Act 1988.

Mr Lee claimed that the employer’s site attendance policy breached sec 13G of the Act and the APPs by “interfering with the privacy of individuals”. He claimed that the employer breached the Act by not having an APP policy and not notifying employees of the information it collected from them. 

There is, however, an exemption from the Act for employee records. 

Decision


The FWC found that the site attendance policy was reasonable, and in the light of the safety and integrity problems of the previous attendance recording systems it was “reasonably necessary” as defined in the Privacy Act. The employer was entitled to require all employees to comply with it. 

To also have a separate system for just one employee would be onerous and unreasonable. 

The FWC criticised the employer for not having an information privacy policy and not issuing a collection notice. However, even if it had done so this would not have allayed Mr Lee’s concerns and he would still have refused to comply. The policy itself was not unlawful, but the employer’s other failures may have been. 

On balance, the employer’s requirement was lawful and reasonable, and it had a valid reason to dismiss Mr Lee. The dismissal was not harsh, unjust or unreasonable.

The bottom line: If an employee refuses to comply with an employer’s requirement to record his/her attendance, it is likely to be a valid reason for dismissal, provided the attendance recording system is itself lawful. Although employee records used for employment purposes only are exempted from coverage by the Privacy Act 1988, recommended practice is to notify employees what information will be collected, who will access it and what it will be used for – and then not use it for any unlawful purpose.

Read the judgment  


Lee v Superior Wood Pty Ltd t/a Superior Wood, [2018] FWC 4762, 1 November 2018 
 
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