Lee v Superior Wood Pty Ltd [2019] FWCFB 2946: Biometric Data and Unfair Dismissal

Thursday 23 May 2019 @ 10.54 a.m. | Industrial Law | Legal Research

In the case of Lee v Superior Wood Pty Ltd [2019] FWCFB 2946 (1 May 2019), the Full Bench of the Fair Work Commission, has handed down a decision in favour of Jeremy Lee (the “Applicant”) ruling that there “was no valid reason for the dismissal” of the Applicant for refusing to provide consent to his employer Superior Wood Pty Ltd (the “Respondent”) to use his fingerprints and biometric data.

According to a recent article, the Applicant was concerned about protecting his biometric and personal data and so refused to accept a new security process which used an employee’s fingerprints to sign on and off at his workplace.

After being given a series of verbal and written warnings, the Applicant was eventually dismissed by his employer in February 2018, even after he suggested a compromise which would allow him to keep his job, but also hold onto the ownership of his biometric data, as this compromise was ultimately refused by the company.

At first instance, Mr Lee commenced an unfair dismissal case against his employer (and was represented by pro bono lawyers) but was unsuccessful as Commissioner Hunt found in favour of the Employer — see Jeremy Lee v Superior Wood Pty Ltd [2018] FWC 4762 (1 November 2018). The Applicant then appealed the decision, arguing his case before the Full Bench and overturning the first instance decision, noting at [99] in their decision:

“We accept Mr Lee’s submission that once biometric information is digitised, it may be very difficult to contain its use by third parties …”

Speaking with ABC News, Mr Lee said for about three months his employers "tried to coerce" him to agree to the new fingerprint scanning system, but he did not wish to hand over his biometric data for fear it could be shared and potentially misused. Mr Lee said:

"If someone else has control of my biometric data they can use it for their own purposes — purposes that benefit them, not me. That is a misuse."

His employer argued the new scanning system meant they could better track who was or wasn't on the premises, but Mr Lee says there are other means of doing that, by the use of electronic swipe cards, for example.

ABC News also said that under the Privacy Act 1988 (Cth) (the “Act”), the employer is to give sufficient notification and allow for a process of informed consent, and at [96-97] of the decision it was noted:

“… It should have been, but was not, aware of and compliant with its obligations under the Privacy Act well before the introduction of the scanners. Its failure in this regard contributed substantially to a dismissal without valid reason … it was in Superior Wood’s failure to be aware of its obligations under the Privacy Act. In the circumstances this weighs in favour of a finding that Mr Lee’s dismissal was unfair …”

Section 2A of the Act sets out the objects of the legislation, which include “… to promote the protection of the privacy of individuals … “ and in handing down their decision, the Full Bench also referred to the Act — see [33]:

“… Section 13 of the Privacy Act deals with interferences with privacy. Relevantly, an act or practice of an ‘APP entity’ is an interference with the privacy of an individual if it breaches an Australian Privacy Principle in relation to personal information about the individual. By reason of section 15, acts and practices that breach an Australian Privacy Principle are prohibited …”

While at [53] of the decision, the Full Bench said:

“Superior Wood submits that despite the absence of a privacy policy and privacy collection notice, it did not breach the Privacy Act because the employee records exemption applied in relation to the fingerprint scanner. We understand the submission to be to the effect that all records generated by an employer, including those that have not yet been created, are within the scope of that exception. We do not agree … An entity 'holds' personal information if they have possession or control of a record that contains the personal information.”

The Commission found Mr Lee’s employer’s scanning policy had violated the Act. Commenting on the outcome, Josh Bornstein (National Head of Employment Law with Maurice Blackburn lawyers) said:

“… [the law] has been shifting very much in favour of employers being able to give employees direction successfully about medical information [and] other information, making greater and greater incursions into their employees' lives".

The National Retail Association reports of a recent example where a former franchisee of a 7-Eleven store had been required to implement fingerprint scanners as a means to prevent underpayments, but instead introduced an unlawful “cash back” system to deliberately circumvent the system. The former franchisee was later fined $154,225 for the contraventions.

While Mr Lee is happy with the result, the outcome of his case has left him disappointed. While the law declared he was unfairly dismissed, his case didn't set a legal precedent — as he'd hoped it would — concerning the ownership of biometric data. Mr Lee doesn’t have a police record or any other reason to fear using his fingerprint, but he was simply concerned about the misuse of his personal data.

Mr Bornstein says the law has never recognised biometric information as property and (precedent or not) Mr Lee's win is remarkable:

“He may not have achieved a finding that he couldn't be forced to hand over his property, but he did achieve a finding that he could not be forced to hand over, without his consent, sensitive information under the Privacy Act."

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