“Unlawful” and “unreasonable” to direct employee to submit to fingerprint scanner

“Unlawful” and “unreasonable” to direct employee to submit to fingerprint scanner

Authors: Greg Robertson, Justin Pen & Amelia Dowey

The Full Bench of the Fair Work Commission has ruled that a casual general factory hand employed by a sawmill operator had been unfairly dismissed, finding that the sawmill operator had unlawfully and unreasonably directed the factory hand to consent to submit to fingerprint scanning, which would have monitored and tracked his attendance at the worksite.

In January 2017, the sawmill operator announced a new site attendance policy, which relevantly required that all of its employees “use the biometric scanners to record attendance on site.” Following a seven-week trial period, the sawmill operator introduced the biometric scanners. The factory hand then refused to comply with the sawmill operator’s direction to give his biometric information to his employer, which led to his dismissal.

In the present case, the Full Bench was tasked with, among other things, determining if the sawmill operator’s direction that the factory hand, and all of its employees, had to submit to biometric scanning was a “lawful and reasonable” direction.

In doing so, the Full Bench considered the Privacy Act 1988 (Cth) (“Privacy Act”) and, in particular, Schedule 1 to the Privacy Act, being the Australian Privacy Principles.

Relevantly, the Full Bench observed that Privacy Act prohibited an employer from collecting or soliciting “sensitive information”, such as fingerprint scans, from an employee unless it obtained the employee’s “consent”.

Examining the facts of the case, the Full Bench found that the sawmill operator:

  • had required the factory hand to submit to the fingerprint scanners without his consent;
  • lacked a Privacy Policy to its workforce; and
  • had not issued a Privacy Collection Notice to the factory hand or to any of its employees,

in contravention of the Australian Privacy Principles.

Accordingly, the Full Bench held that the sawmill operator’s direction to be “unlawful” in the circumstances. In relation to the issue of “consent”, the Full Bench stated that “any ‘consent’ that [the factory hand] might have given once told that he faced discipline or dismissal would likely have been vitiated by the threat. It would not have been genuine consent.

Notwithstanding its finding that the sawmill operator’s direction to the factory had been unlawful, the Full Bench further commented that, had it been required to do so, it would have also found that such a direction would have been unreasonable in the circumstances:

Nonetheless had it been necessary to do so we conclude the direction was unreasonable. A necessary counterpart to a right to consent to a thing is a right to refuse it. A direction to a person to give consent does not vest in that person a meaningful right at all. Such a direction is in the circumstances of this case, unreasonable. It was not a valid reason for dismissal.