Australia: Jeremy was fired for refusing fingerprinting at work. His case led to an 'extraordinary' unfair dismissal ruling - PressFrom - Australia
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AustraliaJeremy was fired for refusing fingerprinting at work. His case led to an 'extraordinary' unfair dismissal ruling

03:40  22 may  2019
03:40  22 may  2019 Source:   abc.net.au

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Queensland sawmill worker Jeremy Lee was sacked for refusing to give his fingerprints to his employer. What followed was an extraordinary legal battle that delivered the first unfair dismissal decision of its kind in Australia.

Aussie worker Jeremy Lee was fired after refusing to hand over his fingerprints at work . The Queensland man ended up losing an unfair dismissal case when it was first heard by the Fair Work Commission last year, with a commissioner at the time ruling Superior Wood’s policy was “not unjust

Jeremy was fired for refusing fingerprinting at work. His case led to an 'extraordinary' unfair dismissal ruling© Getty: krisanapong detraphiphat One lawyer has described the case as "quite spectacular and very, very unusual". When Queensland sawmill worker Jeremy Lee refused to give his fingerprints to his employer as part of a new work sign-in, he wasn't just thinking about his privacy.

It was a matter of ownership.

"It's my biometric data. It's not appropriate for them to have it," he tells RN's The Law Report.

For not agreeing to the new system, Mr Lee was sacked.

What followed was a legal battle that delivered the first unfair dismissal decision of its kind in Australia.

Mr Lee represented himself before the full bench of the Fair Work Commission — and won.

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Find out if you can claim unfair dismissal , if you've been dismissed for a fair reason To find out if your dismissal is unfair , you’ll need to check: what your ‘employment status’ is It isn’t black and white - whether your dismissal is actually unfair will depend on all the details of your individual case

An employment tribunal in Jersey ruled in his favour over the unfair dismissal allegations, and awarded him nearly £15,000 in compensation. Mr Ormsby was fired in March but this was then retracted due to ‘procedural inconsistencies’ and he was put on gardening leave pending a capability

"It's extraordinary," says Josh Bornstein, national head of employment law with Maurice Blackburn lawyers.

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Dismissal is when your employer ends your employment - reasons you can be dismissed , unfair and Unfair and constructive dismissal . In certain situations, you may be able to take legal action if asked for flexible working . refused to give up your working time rights - eg to take rest breaks.

Can an employer fire a worker that refuses to work on his scheduled day off? My boss said my refusal is an act of insubordination. We’d all like to think that we have some say at work —ideally, that we and our employers are essentially in a partnership, working together for mutual benefit.

"It's off the charts for a self-represented litigant dealing with very sophisticated legal issues to have such an outstanding result. That is a very unusual achievement.

"There's not too many Jeremy Lees, in my experience."

He says Mr Lee's case reflects the complicated intersection of privacy and technology — an area in which the law is struggling to keep up pace.

'My biometric data is mine' — or is it?

Mr Lee says his employers at Superior Wood "tried to coerce" him to agree to the new fingerprint scanning system for about three months.

But he remained resolute.

Mr Lee says he has no criminal record and has never been in trouble with police. Nor does he object to a drug or alcohol test at work.

But he draws a firm line at handing over his biometric data — data relating to someone's physical or physiological make-up — for fear it could be shared and potentially misused.

"If someone else has control of my biometric data they can use it for their own purposes — purposes that benefit them, not me. That is a misuse," he says.

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His employer argued the new scanning system meant they could better track who was or wasn't on the premises, but Mr Lee says there are other means of doing that.

Swipe cards, he argues, could be just as effective as an electronic identity check. His employers disagreed.

In February 2018 Mr Lee was fired for refusing the new sign-in system.

Represented by pro bono lawyers, he began an unfair dismissal case.

That case, heard by a single commissioner at the Fair Work Commission, was unsuccessful.

The commissioner found the fingerprint scanning system was a reasonable policy; therefore, the sawmill company had a right to require employees to comply with it — and to dismiss those who didn't.

Mr Lee appealed against the decision, proceeding to argue his case before a full bench of the Fair Work Commission — this time without any legal representation or support.

The legal framework he was operating within was highly complicated, but his reasoning was anything but.

"I was insisting that my biometric data is mine," he says.

"My objection was that I own it. You cannot take it. If someone wants to get it or take it they have to get my consent.

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How to dismiss staff fairly, working within dismissal rules and dealing with dismissals relating to whistleblowing. Dismissal is when you end an employee’s contract. When dismissing staff, you must do it fairly. A constructive dismissal might lead to a claim for wrongful dismissal .

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"Surely if my employer tries to get it and sacks me for refusing to give it, that is illegal. That was my argument."

But it was a different argument that convinced the commission's full bench.

'A fantastic and unusual outcome'

The commission's full bench found there was no valid reason to fire Mr Lee for refusing to provide consent to the company to use his fingerprints and biometric data.

On May 1, 2019, more than a year after Mr Lee was sacked, it was found he had been unfairly dismissed.

"I think it was a fantastic and unusual outcome," Mr Bornstein says.

He says all employees have an obligation to "comply with all lawful and reasonable directions" from an employer.

But the Privacy Act states that when an employer wants to collect sensitive information — and biometric data like fingerprints are classified as such — they must give sufficient notification and allow for a process of informed consent.

Mr Lee's workplace failed on both accounts.

The commission found the sawmill's scanning policy had violated the Privacy Act.

Mr Bornstein says the law "has been shifting very much in favour of employers being able to give employees direction successfully about medical information [and] other information, making greater and greater incursions into their employees' lives".

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Whether you can be fired for no reason, when you did nothing wrong, depends on your employment status and specifically on whether you are an at-will employee. In most of the United States, employees are generally considered “at will” employees.

Find out more about fair reasons for dismissal , and your employment rights should you be dismissed . 'Some other substantial reason' applies to a situation where your employer has an overwhelming reason why you must be dismissed .

But Mr Lee's victory presents a major roadblock.

"[Mr Lee's] is a rare case, which actually says 'no, what you did was not right' ... and the employee actually had a win," MrBornstein says.

He says the win highlights the increasingly fraught intersection of privacy, technology and regulation.

"There's a huge issue more broadly in our society as to whether people's privacy protections are being maintained with the rapid pace of technological change," Mr Bornstein says.

"We're seeing employees more closely regulated than ever before — on a 24/7 basis.

"There's no doubt regulation is lagging well behind the development of technology."

Who really owns our biometric data?

Mr Lee is proud of his win, but his case has left him disappointed too.

While the law declared him unfairly dismissed, his case didn't set a legal precedent — as he'd hoped it would — about the ownership of biometric data.

But Mr Bornstein says the law has never recognised biometric information as property and — precedent or not — Mr Lee's win is remarkable.

"What he's achieved is quite spectacular and very, very unusual," he says.

"He may not have achieved a finding that he couldn't be forced to hand over his property, but he did achieve a finding that he could not be forced to hand over, without his consent, sensitive information under the Privacy Act."

Mr Borstein says the issue of whether biometric information is property is "a philosophical debate".

"Ultimately, is our personal information, is our fingerprint data, is the image of our face, property? In some ways it's a legal debate [but] I think it is an even broader argument that's more philosophical in nature," he says.

"So it was, I think, a fantastic and unusual outcome to do this on your own, from first tier up to a full bench, and be successful.

"It's an amazing achievement."

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