DECISION

Fair Work Act 2009
s 604 - Appeal of decisions

Jeremy Lee
v
Superior Wood Pty Ltd
(C2018/6600)

DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER MCKINNON

MELBOURNE, 1 MAY 2019

Appeal against a decision of Commissioner Hunt issued at Brisbane on 1 November 2018 in matter U2018/2253 – unfair dismissal application – rehearing – refusal of employee to use biometric fingerprint scanning to record site attendance – whether failure to comply with lawful and reasonable direction – whether valid reason – whether harsh, unjust or unreasonable – matter remitted on question of remedy.

Introduction

[1] Mr Jeremy Lee has appealed a decision of Commissioner Hunt on 1 November 2018 1 dismissing his application for an unfair dismissal remedy (the Decision) on the basis that his dismissal by Superior Wood Pty Ltd (Superior Wood) was not harsh, unjust or unreasonable, and therefore not unfair, for the purposes of section 387 of the Fair Work Act 2009 (‘the Act’).

[2] Superior Wood operates two sawmills at Melawondiand Imbil in Queensland. At the time of dismissal, there were approximately 150 employees employed by Superior Wood, and approximately 80 of those employees worked at the Imbil site, including Mr Lee. Mr Lee was employed as a casual general hand and had a total period of service of approximately 3 ¼ years. Superior Wood is part of the ‘Finlayson’ group of companies (the Finlayson Group), which also includes Finlayson Timber and Hardware Pty Ltd (FTH).

[3] On 12 February 2018, Mr Lee was dismissed because he did not comply with Superior Wood’s Site Attendance Policy (the Policy) by refusing to use newly introduced fingerprint scanners to sign on and off for work at the site.

[4] At the heart of the matter is Mr Lee’s claim of ownership of the biometric data contained within his fingerprint. He submits that biometric data is sensitive personal information under the Privacy Act1988 (Privacy Act); that Superior Wood was not entitled to require that information from him; and that his refusal to give the information to Superior Wood was not a valid reason for his dismissal.

Background

[5] On 25 October 2017, Superior Wood convened a floor meeting at Mr Lee’s workplace to announce the introduction of fingerprint scanners. Employees were advised that they would have to register their fingerprints over the following week and register their attendance using the scanners at the start and finish of each shift.

[6] On 1 November 2017, Mr Lee was directed to attend a meeting to register his fingerprints. He attended the meeting, but did not provide his fingerprints. He continued to sign in and out using the site’s sign in and sign out book.

[7] On 2 November 2017, there was a meeting between Mr Lee and Superior Wood. Reasons for the introduction of the scanners were discussed. Mr Lee expressed concern about the control of his biometric data and the inability of Superior Wood to guarantee no third party…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWCFB 2946
Decision Date: 1 MAY 2019

CaseChat Overview and Summary

The appeal before the court involved Lee, the applicant, who was contesting the decision made by Commissioner Hunt on 1 November 2018 in matter U2018/2253. This matter was an unfair dismissal application, which had been reheard. The dispute centred on Lee's refusal to use biometric fingerprint scanning to record his attendance at a work site. The court had to determine whether this refusal constituted a failure to comply with a lawful and reasonable direction and, if so, whether this constituted a valid reason for dismissal. Additionally, the court was tasked with deciding whether Lee's dismissal was harsh, unjust, or unreasonable.

The primary legal issues before the court were whether Lee's refusal to comply with the biometric fingerprint scanning policy amounted to a failure to comply with a lawful and reasonable direction and, if so, whether this constituted a valid reason for dismissal. The court also needed to determine whether Lee's dismissal was harsh, unjust, or unreasonable in the circumstances. The court considered the reasonableness of the direction, the fairness of the dismissal, and the availability of alternative measures to address the employer's concerns.

The court found that the biometric fingerprint scanning policy was a lawful and reasonable direction, but it did not consider the refusal to comply with this policy to be a valid reason for dismissal. The court held that the employer had not demonstrated that Lee's dismissal was necessary or proportionate to the circumstances. The court further found that Lee's dismissal was harsh, unjust, or unreasonable. Consequently, the court remitted the matter to Commissioner Hunt to consider the appropriate remedy, including potential reinstatement or compensation.

The final orders of the court were that the decision of Commissioner Hunt was set aside, and the matter was remitted to the Commissioner for reconsideration of the remedy. The court directed the Commissioner to consider whether Lee should be reinstated to his position or awarded compensation, taking into account the circumstances of the dismissal and the principles of fairness and justice.

Orders