A QUEENSLAND sawmill worker sacked for refusing to sign in using a fingerprint scanner has lost an unfair dismissal claim despite his employer’s “disturbing” privacy failures.
Factory hand Jeremy Lee took his case to the Fair Work Commission in March after being let go from the Superior Wood mill in Imbil, near Gympie, where he had “not missed a single day at work” in three years.
The company introduced the new policy in October 2017, announcing that “all employees must use the biometric scanners to record attendance on site”. Mr Lee objected, saying he regarded his biometric data as “personal and private”.
“Information technology companies gather as much information/data on people as they can, whether they admit to it or not — see Edward Snowden,” he said in a letter to his employer. “Such information is used as currency between corporations.”
His employers explained that the scanner determined only “unique points” of the finger, which were then translated into an electronic signature. They said the template “cannot be used to recreate a fingerprint for identification purposes”.
Mr Lee refused to back down and was sacked.
He told the Commission he did not believe the explanation about the scanner. “It’s a palatable explanation of what they do with it,” he said. “I think they most probably do take a fingerprint scan and can recreate a fingerprint, but most people won’t see that.”
Asked why “anybody on the face of planet earth would do a thing like that”, Mr Lee said it was “valuable data that companies are seeking to get”.
“It’s empowering to those that have it,” he said. “The power of surveillance and — it’s a bit hard to describe. It’s like you have — it’s kind of like ownership. It’s part of my biometric data. It’s my identity.”
But he admitted was had no evidence the fingerprint could be reconstructed.
Mr Lee was sacked for failing to comply with a “lawful and reasonable direction”. He contended that it was not a valid reason because the direction was unlawful, as the site attendance policy was in breach of the Privacy Act.
In her decision, Fair Work Commissioner Jennifer Hunt found the policy was “not unjust or unreasonable”, but she did raise concerns about the privacy issues.
She said it was “concerning” employees were not provided with a collection notice explaining what would be done with their information, how it would be kept safe and who it would be shared with.
She described the evidence of Mitrefinch’s representative as “poor and rather disturbing relevant to the obligations on Mitrefinch to ensure it collects and uses personal and sensitive information in accordance with Australian privacy laws”.
But Ms Hunt found that even though the failure to provide a collection notice “may” have been a breach of the Privacy Act, it did not render the site attendance policy itself unlawful.
“It is clear that even if a privacy collection statement had been issued, it would not have allayed any of Mr Lee’s concerns,” she said.
“Even at hearing, Mr Lee remains steadfast of the view that his fingerprint can be reconstructed from the biometric data obtained from the scanner. I understand his concerns and his distrust, and he is entitled to hold such views.”
She rejected the application, finding that even “having regard to any potential breaches of the Privacy Act”, there was a valid reason for Mr Lee’s dismissal.
Trent Hancock, principal lawyer at McDonald Murholme, said the case “really came down to the fundamental issue of whether the employer was issuing a lawful and reasonable direction in asking he comply with the site attendance policy”.
“The Commission did determine it was lawful and legal, (and that) it was a reasonable policy adopted in a reasonable way,” he said.
“He got some traction (on the privacy argument), the Commission was a little bit scathing in that regard, but ultimately found the policy itself was lawful.”
Mr Hancock said biometric scanning was becoming increasingly common across a range of industries. “It makes sense, it’s a much better way of recording attendance, you can certainly understand why employers have adopted it,” he said.
“The Commission has consistently taken the view that these types of systems can be lawfully implemented, but you will increasingly see sceptics like Mr Lee who are concerned about how that data is being stored and used.”