An employee who won a landmark unfair dismissal case after being sacked for refusing to provide fingerprint data to his employer has been denied reinstatement by the Fair Work Commission (FWC).
In the previous full bench hearing, the employer said that if the employee was reinstated and it had to reintroduce its manual timekeeping system for just one person, it would be at “significant inconvenience and some expense”, as it had now dispensed with the manual system.
The employer was also concerned that the reinstated employee could encourage other employees not to use the fingerprint system, which it argued was much safer. The employee presented a number of counterarguments challenging the alleged safety benefits.
In the latest hearing to determine the appropriate remedy for the employee’s unfair dismissal, FWC Commissioner Chris Simpson reiterated the full bench decision that the employee was “entitled not to comply with the policy in this case, and a direction to do so was an unlawful direction”.
However, he found that reinstatement would be inappropriate.
While finding that the employer’s submission that the employee, if reinstated, would “seek to persuade others not to comply with the policy for ulterior motives” was “too speculative”, he did conclude that the employer had a “rational basis for loss of trust and confidence” in the employee.
He also concluded that the distrust was mutual.
The employee had openly called the company director “dishonest and deceitful” and had publicised his case in the national media.
The director then received phone calls and emails from members of the public calling him “scum of the earth”. The director said he was “sickened” by being called names which he found “totally offensive”.
Further, Commissioner Simpson said the employee had “not been satisfied by his success on appeal before the full bench” and that his conduct was “indicative of him having ongoing issues” with the director “because of the manner in which the biometric scanning system was introduced and the ongoing use of the system”.
“[The employee] is not willing to put historical issues with [the director] behind him,” Commissioner Simpson said.
The employee was awarded $24,117.08 in compensation, plus superannuation.