An employee who was sacked for refusing to use a fingerprint scanner to sign in to work has been granted permission to appeal an unfair dismissal claim he lost in November last year.
The worker at Superior Wood sawmill in Queensland was concerned that his private data could be leaked and misused when the company announced that “all employees must use the biometric scanners to record attendance on site”.
He wrote to his manager, stating he was unwilling to have his fingerprints scanned as he regarded his biometric data to be “personal and private”, and that if he submitted to the scanning he would be allowing “unknown individuals and groups” to have access to this data which could be acquired and traded.
Citing Edward Snowden, he said that if he consented to a fingerprint scan, his fingerprint would then be stored and used by information technology companies, either immediately or at a later time, as “currency”.
“All the largest technology companies – such as Apple, Google, Facebook, Telstra, Samsung – are in a race to access and store as much data on individuals as they can. This info is then traded and exchanged,” he said.
His manager wrote back, claiming to address the employee’s security concerns and included a document from the biometric scanner supplier.
“The information gathered is not a finger print but a set of data measurements which is processed via an algorithm,” he stated, asserting that “There is no possible way the data measurements can be converted or used as a finger print”.
“The company and its supplier cannot use your data measurements for any other purpose other than linking your payroll number to a clock in/out time,” he wrote.
The employee didn’t believe this and continued to refuse to use the biometric scanner until he was dismissed about 12 weeks later.
Did the employer have a right to use biometric data, even if it had breached the Privacy Act?
In the initial Fair Work Commission (FWC) unfair dismissal hearing, the sawmill manager conceded that the company did not have a privacy or confidentiality policy in place to cover employees at the time of the dismissal.
However, Commissioner Jennifer Hunt found that the employee was not unfairly dismissed and said that his objection to using the scanners was unreasonable, as they improved payroll processes and “allowed for additional safety benefits”.
The Commissioner said that the company was “within its rights” to create a policy mandating the use of biometric scanners and even though the company had failed to provide a privacy collection notice to employees before collecting their personal and sensitive information, it did not make the policy unlawful.
“While there may have been a breach of the Privacy Act relevant to the notice given to employees, the private and sensitive information was not collected and would never be collected relevant to
because of his steadfast refusal. The policy itself is not unlawful, simply the manner in which the employer went about trying to obtain consent may have constituted a breach of the Privacy Act,” she said.
Appeal is in “public interest”
In his appeal, the dismissed employee said there is “clear public interest” in this decision, as Commissioner Jennifer Hunt’s initial ruling set a precedent that “legitimises and legalises the taking of employees’ sensitive information by employers” that has “obvious ramifications as … an employee cannot refuse to give their sensitive information to an employer and be protected from dismissal”.
“This decision changes the nature of the relationship between employer/employee from an exchange of labour to one which includes the collection of employee’s sensitive information,” he said.
A full bench of the FWC agreed that it was in “public interest” to grant permission to appeal as they found the case raised “important, novel and emerging issues” that have not previously been “the subject of Full Bench consideration or guidance”.
“The parties will be shortly advised concerning the hearing of the substantive appeal and the directions to be issued in preparation for the hearing,” they said.