A Full Bench of the Fair Work Commission has granted a former employee reasonably rare permission to appeal against a decision of the Commission dismissing his unfair dismissal case on the basis that his dismissal was not harsh, unjust or unreasonable in circumstances where his employment was terminated on the basis that the employee had refused to comply with the employer’s policy requiring its employees to submit their “personal biometric data” in this case to facilitate the use of the company’s biometric fingerprint scanners to determine who was on site and when.
The employee’s case both at first instance and on appeal was that the policy was not lawful and reasonable for a number of reasons including that it conflicted with the Privacy Act (Commonwealth) which the employee argued prohibited the employer from collecting and using an employee’s personal information without his.
In an interesting decision the Full Bench held
“It is unnecessary for us to consider, in detail, the grounds of appeal set out in the appellant’s Notice of Appeal and his argued oral submissions. Given the considerations which go to the public interest, we have decided to grant permission to appeal for the following reasons:
- We are persuaded that there is an arguable case of appealable error identified in the appeal as to:
- whether the request to comply with the respondent’s Site Attendance Policy was lawful and/or reasonable, in all the circumstances of the case, and in the context of the appellant’s refusal to provide consent to the disclosure of his personal biometric data;
- whether the Commissioner’s findings as to the application of the Privacy Actwere relevant, and/or appropriately balanced with the exercise of the Commissioner’s discretion under Part 3-2 of the Act – Unfair Dismissal;
- to the extent thePrivacy Act is relevant, whether the exemption in s 7B in respect to an ‘employee record held by the organisation and relating to the individual’ includes the process by which the employee record is obtained or created;
- whether an employee’s refusal to provide consent to the collection of sensitive ‘information about an individual’ in APP 3.3 is a breach of the respondent’s Site Attendance Policy; and
- whether the ‘consent’ required by APP 3.3 includes ‘implied consent’, in circumstances where the employees have registered their fingerprint algorithm to be used by the scanners without first having been notified as required under the Privacy Act.
- Further, this case is the first occasion the Full Bench of the Commission has considered the essential question posed by the Commissioner’s Decision; namely, 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, pursuant to the s 387(a) of the Act. We are satisfied that the appeal raises important, novel and emerging issues, not previously the subject of Full Bench consideration or guidance.
For these reasons, we consider the public interest is enlivened by this appeal and we propose to grant permission to appeal. We order accordingly.”
Lee v Superior Wood Pty Ltd (2019) FWCFB 95 delivered 17 January 2019 per Sams DP, Gostencnik DP and McKinnon C
Stay tuned; this will be as very interesting case when the substance is heard.