Sawmill operator wins case overfingerprint sacking

A sawmill worker sacked for refusing to use a fingerprint scanner when entering and leaving work won his unfair dismissal claim.

An electronic finger scanner. The bench agreed Jeremy Lee’s case raised “important, novel and emerging” workplace issues not considered previously by a full bench.

A former Queensland sawmill worker who was sacked for refusing to use a fingerprint scanner when entering and leaving work has won his unfair dismissal claim, in a landmark case on employer use of emerging technology to monitor employees.

A commission full bench upheld an appeal by former sawmill operator Jeremy Lee, who was sacked by Superior Wood in February last year after refusing to use newly introduced fingerprint scanners to sign on and off for work.

Fair Work Commissioner Jennifer Hunt upheld the sacking but the full bench agreed to consider an appeal, finding the case raised “important, novel and emerging” workplace issues not considered previously by a full bench.

Detailing his concerns about the scanners and the collection of his biometric data, Mr Lee said he would not consent to the fingerprint scanning because he regarded his biometric data as “personal and private” and believed it could be accessed by third parties.

Citing whistleblower Edward Snowden, he said the largest technology companies, including Apple, Google and Facebook, were in a “race to access and store as much data on individuals as they can”.

The full bench said the new attendance policy came into operation well after Mr Lee was employed and it was not satisfied that compliance with the policy was a term of his employment.

It said his obligation to comply with the policy depended on whether the direction to do so, using the scanners to sign in and out of work each day, was a reasonable and lawful direction.

It found Superior Wood did not have a privacy policy as required under the Privacy Act.

“We consider the direction to Mr Lee to submit to the collection of his fingerprint data, in circumstances where he did not consent to that collection, was not a lawful direction,’’ the full bench said.

“Moreover we consider that any ‘consent’ that he 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.”

It said 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,’’ it said. “Such a direction is in the circumstances of this case, unreasonable. It was not a valid reason for dismissal.”

The case had been remitted to the commission to consider a remedy.

“On balance, we find that Mr Lee’s dismissal was unjust,” it said.