In the case of Lee v Superior Wood Pty Ltd  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, 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  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  in their decision:
Speaking with, 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:
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.
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:
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 :
While at  of the decision, the Full Bench said:
The Commission found Mr Lee’s employer’s scanning policy had violated the Act. Commenting on the outcome,(National Head of Employment Law with Maurice Blackburn lawyers) said:
Thereports 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.
says the law has never recognised biometric information as property and (precedent or not) Mr Lee's win is remarkable:
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Jeremy Lee v Superior Wood Pty Ltd  FWCFB 2946 (1 May 2019)
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