6th June 2019 - Jax Floro

For refusing to use a biometric scanner at work, Jeremy Lee, a casual factory general hand at Superior Wood, was sacked last February 2018. After many verbal and written warnings from his employer, Jeremy took a stand and refused to use the scanner claiming that his biometric data was “sensitive personal information”. Wanting to keep his job, Jeremy even suggested a compromise to not give up his biometric data but to no avail. So, Mr. Lee filed a case!

When his case was first heard by a single commissioner of the Fair Work Commission, Mr. Lee lost. The commissioner ruled in favor of Superior Wood and stated that the policy was “not unjust or unreasonable” because it promoted workplace safety, non-compliance made the payroll system inefficient, and that the company “had the right to manage its affairs.”

During that time, the central idea of Mr. Lee’s argument was that the policy was a breach of the Privacy Act, with the claim that he owned his biometric data and that the company could not compel him to provide it under the said Act.

Without any legal representation or support, Mr. Lee then appealed the case before a full bench of the Fair Work Commission. On 1 May 2019, the Commission ruling in Mr. Lee’s favor, finding that he was unfairly dismissed.

According to case documents, the Commission stated that the company, Superior Wood “did not have a valid reason for the dismissal which related to Mr. Lee’s capacity or conduct”. The documents stated further that “…on balance we find that Mr. Lee’s dismissal was unjust. It was unjust because Mr. Lee was not guilty of the conduct alleged.”

By implementing the scanning policy without giving sufficient notice and not allowing for a process of informed consent as dictated by the Privacy Act, the company contravened the provisions of the Privacy Act. The circumstances surrounding this unfair dismissal case is the first of its kind dealing with biometric data and considering the brisk progress of technology, there will be other similar cases that will follow.

As employment law expert Will Barsby declares, “It shows that employment law is at a crossroads with technology, and these kinds of issues are going to continue to come up as technology rapidly advances”.

Both regulators and employers will have to work double time in order to keep pace with advancements in technology and to ensure compliance with data and privacy law!

Takeaway points:

 

• Under the Privacy Act, an employer must provide sufficient notification and allow for a process of informed consent when it collects sensitive information – this includes biometric data like fingerprints or an iris scan – from its employees.
• Employers, make you sure your procedures and practices for employees comply with the privacy law.
• The landmark case brings to the fore a debatable question: who actually owns your biometric data?
• Laws need to be updated alongside the advancement of technology as issues concerning privacy and sensitive personal information disputes are spilling over into the court room.
• When biometric information is digitized, remember, there is also a risk of exposure and access to unauthorised third parties! 

Jaclyn-Mae Floro, BCompSc

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Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.