If a worker refuses biometric fingerprint scanning, is it unfair dismissal to sack them? Which case won?
Company introduces site attendance policy with biometric fingerprint scanning
A company introduced a biometric fingerprint scanning system as part of its new site attendance policy for all its employees. This measure was intended to provide security, safety and efficiency benefits for the company.
After the policy was announced during a floor meeting in October 2017, all company staff were directed to register their fingerprints over the following week. Once registered, employees would then check in and out of the company’s work sites by using scanners provided at the start and finish of each shift.
Employee refuses to provide fingerprints
One employee was a casual general hand who had worked at the company for more than three years. In November 2017 he was called in and attended a meeting, but did not provide his fingerprints when asked to do so.
The following day he met his supervisors, who provided him with further information about the site attendance policy and the scanning system. They provided reasons for the decision to introduce the scanners and the benefits the system would bring to the company.
Employee concerns regarding third party access to fingerprint data
The employee said he was not satisfied that the company could guarantee that third parties would not be able to access the electronically stored fingerprint data and there was no guarantee that the biometric information in his prints could not be used by any other persons.
The employee then wrote to the company, setting out his concerns about privacy and his objection to providing his fingerprints. The company responded with additional information about the nature of the fingerprint data collection.
The company provided the employee with documentation from the suppliers of the scanners, which said that the data collected could not be used “for any other purpose other than linking your payroll number to a clock in/out time”.
Company dismisses employee after discussions and warnings
The scanners were implemented in January 2018. Meanwhile, the employee continued to check in and out of work using the sign in and out book.
He was given a verbal warning and was subsequently warned in writing that if he continued to fail to comply with the policy, it would result in his employment being terminated.
The employee wrote to the company that he wished to be allowed to keep his job, but insisted on retaining ownership of his biometric data. Further discussions did not result in any resolution.
In February 2018 a show cause letter was issued to the employee, after which he was dismissed.
The employee brought an application in the Fair Work Commission for unfair dismissal. It was up to the commission to determine whether it was reasonable and lawful for the employer to require the employee to provide the biometric data and if so, whether the dismissal was harsh, unjust or unreasonable.