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Full Bench to Determine Whether Finger Print Scanning Is Lawful and Reasonable

Posted on by Charles Lentini

A full bench of the Fair Work Commission (‘FWC’) has granted a former employee permission to appeal his dismissal for refusing to use biometric finger print scanning to record his attendance at the workplace.

The former employee was a casual General Hand that had worked for the employer for approximately three and a quarter years at both sawmilling sites operated by the employer. In October 2017, the employer announced that it was introducing biometric scanners at it’s Imbil Mill to record on-site presence. Out of 400 employees at this site the former employee was the only employee who refused to use the scanners.

Despite a number of meetings with the former employee between November 2017 and February 2018 to discuss his concerns, the former employee continued to object to using the scanners and maintained that he wished to use the ‘paper sign-in’ process or a swipe card system. His refusal ultimately led to his dismissal on 12 February 2018. The former employee then claimed unfair dismissal.

The original decision of Commissioner Hunt in Jeremy Lee v Superior Wood Pty Ltd t/a Superior Wood [2018] FWC 4762 found that the former employee refused to use the employer’s biometric fingerprint scanners in accordance with the Site Attendance Policy and that the dismissal was fair as the former employee refused to follow a lawful and reasonable workplace policy. The former employee’s arguments about his ownership of the biometric data, the obtaining of sensitive personal information without his consent and that the employer’s policy breached the Privacy Act 1988 were not accepted by the FWC.

The former employee lodged an application for permission to appeal against Commissioner Hunt’s decision with a full bench of the FWC. The full bench decided in Jeremy Lee v Superior Wood Pty Ltd t/a Superior Wood [2019] FWCFB 95 that it was in the public interest to grant permission to appeal for the following reasons:

The first reason is that there was an arguable case of appealable error in relation to:

  • Whether the request to comply with the employer’s Site Attendance Policy was lawful and reasonable in all the circumstances and in the context of the former employee’s refusal to provide consent to the disclosure of his personal biometric data;
  • Whether the findings about the application of the Privacy Act 1988 were relevant and/or appropriately balanced with the exercise of Commissioner Hunt’s discretion when determining an unfair dismissal;
  • To the extent that the Privacy Act 1988 is relevant, whether the employee record exemption in section 7B of the Privacy Act 1988 includes the process by which the employee record is obtained or created;
  • Whether the former employee’s refusal to provide consent to the collection of sensitive information about an individual in Australian Privacy Principle (‘APP’) 3.3 is a breach of the employer’s Site Attendance Policy;
  • Whether the ‘consent’ required by APP 3.3 includes ‘implied consent’ in relation to where employees have registered their fingerprint algorithm to be used by the scanners without first having been notified as required under the Privacy Act 1988.

The second reason is 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. The full bench was satisfied that this appeal raises “important, novel and emerging issues” that had not previously been the subject of full bench “consideration or guidance”.

This appeal decision will be important to those employers that use, or are considering the use of biometric finger print scanning or other technological identification systems for site attendance and payroll purposes. A further article will be published once the appeal decision is released.

If you would like to know more about the implications of this decision, please contact a Livingstones consultant on +61 7 3833 1200.

Written by Charles Lentini

Charles Lentini

Charles combines his passion for delivering successful outcomes with his extensive experience in both the public and private sector to provide tailored and practical Industrial Relations solutions. He has a calm, methodical and diligent approach to solving complex issues which allows him to analyse each issue logically and instill confidence in his clients.

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