In Jeremy Lee v Superior Wood Pty Ltd  FWCFB 2946, the Full Bench of the Fair Work Commission determined that a direction given to an employee to provide his fingerprint – his biometric data – was not a lawful and reasonable direction from the employer, and consequently the employee’s refusal to comply with the new company policy was not a valid reason for his dismissal.
Jeremy Lee was employed as a casual General Hand at the Superior Wood Pty Ltd sawmill in Imbil, Queensland for a little over three years. In late 2017 Superior Wood announced the introduction of fingerprint scanners which were to be used for recording employee start and finishing times and linked directly to payroll. Employees were advised in late October 2017 that they were required to register their fingerprints in the new system and from that point on, start using fingerprint scanners to register their attendance at work. Mr Lee was directed to attend a meeting to register his fingerprints on 1 November 2017. He attended the meeting but did not provide his fingerprints, primarily due to concerns regarding security. He continued to work and used the existing sign in/out book to manually record his attendance.
After a number of attempts at conciliation, Mr Lee continued to refuse to provide his fingerprint data and as a result, Superior Wood terminated his employment.
Following his termination, Mr Lee made an unfair dismissal application to the Fair Work Commission. At first instance his application was dismissed, meaning the dismissal was not considered harsh, unjust or unreasonable.
Mr Lee appealed to the Full Bench of the Fair Work Commission.
In any unfair dismissal matter, consideration is given to the size of the business and the extent to which the employer has (or has access to) dedicated human resources management specialists or experts. These considerations are prescribed in the Fair Work Act 2009.
In this case, the Commission found that there was no evidence that Superior Wood employed a dedicated human resources specialist, but nor was there any evidence that it did not have the means to access specialist advice, had it wished to do so. As a result of this, the Commission noted that Superior Wood was “not aware of and compliant with its obligations under the Privacy Act” but that it should have been.
One of the take home messages from this case is that it is important to seek out and obtain specialist HR advice especially when confronting disciplinary issues. A lack of a dedicated HR person or persons may be seen by the Courts as no excuse for not obtaining such advice and the potential consequences for this lack of advice may be severe.
Joanna Andrew is a Partner of the Adelaide based mid-tier law firm Mellor Olsson Lawyers. She specialises in professional negligence, corporate governance and risk. Here, she advises Boards and Executives and undertakes Board and Director performance reviews. In addition, Joanna, with her team, also provide advice to Boards in relation to risk management and undertake internal investigations in relation to incidents and complaints with thorough reporting.
She has held a number of Non-Executive Director positions including Independent Chairman on Not-For-Profit, Sporting and Commodity Boards and Committees.
Joanna is a Facilitator for the Australian Institute of Company Directors, Company Directors Course. In 2018 Joanna was recognised as one of the “Indaily’s Top 40 Under 40 Young leaders” in South Australia.