Businesses collecting biometric data from their employees are being advised to review their processes after the Fair Work Commission (FWC) ruled in favour of a worker fired for refusing to use a fingerprint scanner.
Queensland-based sawmill Superior Wood, owned by the Finlayson Group, fired a casual factory hand in February last year after he refused to register his fingerprints for use in a new biometric scanner.
The worker filed for unfair dismissal, claiming the sawmill’s attendance policy was unlawful because his fingerprints are sensitive information under privacy legislation and his employer could not compel him to provide them.
He lost his initial case last November after commissioner Jennifer Hunt found it was “reasonably necessary” for the business to introduce biometric scanning as it improved safety and payroll integrity.
However, the full bench sided with the worker on appeal yesterday in a ruling expected to throw the viability of finger and retinal scanning technology within the workplace up in the air.
The FWC found Superior Wood breached its obligations under the Privacy Act by having inadequate protections in place to protect sensitive personal data at the time the worker was fired.
The commission ruled the worker was “entitled to seek to protect” his biometric data, finding fingerprint scanning was “administratively convenient” for the employer rather than reasonably necessary.
“We find that … [worker’s] dismissal was unjust,” the full bench said.
“It was unjust because … [worker] was not guilty of the conduct alleged. As the direction was unlawful he was entitled to refuse to follow it.”
“The cat is out of the bag”
Athena Koelmeyer, managing director of workplace law, says the ruling has potentially far-reaching implications for employers using biometric scanning in their workplaces.
“The cat is out of the bag now in terms of the type of systems employers use,” Koelmeyer tells SmartCompany.
“Employers that rely on biometric data for payroll or other administrative reasons might have to rethink the alternative … such as a swipe card,” she says.
Koelmeyer says prudent employers should make sure there’s a choice between biometric scanning and less intrusive options for employees who feel strongly about their privacy.
“There’s a lot of magic in the word reasonable … and this is a very good example of how the word reasonable means different things to different people,” Koelmeyer explains.
“If you work at ASIO, or at a deeply secret part of the Australian Federal Police, then biometric scanning for restricted access may well be very reasonable,” Koelmeyer says.
Employers collecting biometric data are also advised to make sure they have comprehensive privacy policies.
Commission “has it wrong”
Workplace lawyer Peter Vitale argues the full bench’s decision is in conflict with its findings on similar matters involving medical records.
“The fundamental basis of the decision was the employee was entitled to the benefit of the Privacy Act and that it was not reasonable for the company to require him to consent to provide his biometric data,” Vitale tells SmartCompany.
The commission found there was some validity to the desire of the employer to improve safety and payroll integrity, which Vitale says leaves its decision in opposition to how it’s approached similar matters.
“I would draw a comparison with a direction to an employee to undergo a medical,” he says.
“The commission has repeatedly held a direction to undergo a medical in the right circumstances is lawful.
“That an employer who has valid reasons for introducing fingerprint scanning can’t then direct an employee to provide the basic data seems to me to be inconsistent with broader principles.”
SmartCompany contacted Superior Wood for comment but did not receive a response prior to publication.
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