A recent case in the Fair Work Commission has confirmed that poorly drafted employment contracts and workplace policies can expose employers to the risk of an unfair dismissal claim.

In Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB 2946, the Full Bench of the Fair Work Commission (“the Commission”) found in favour of Jeremy Lee, a self-represented litigant, after he was dismissed from his position as a casual sawmill worker early last year.

Mr Lee was dismissed by his employer, Superior Wood, after he refused to sign in using a fingerprint scanner, Mr Lee arguing his biometric data was personal and private and his consent should always be sought before its collection.

In finding that Superior Wood did not have a valid reason for dismissing Mr Lee, the Commission made the following findings.

Firstly, the Commission was not satisfied that compliance with the policy which accompanied the introduction of the fingerprint scanning system was a term of Mr Lee’s employment. This was because a strict reading of Mr Lee’s employment contract meant he was only required to comply with the Company’s policies in force when he signed the contract. As the policy was introduced four years after Mr Lee signed his contract, Mr Lee was not bound to comply with the policy.

Therefore, the second issue for the Commission to decide was whether Superior Wood could direct Mr Lee to comply with the policy if there was no contractual obligation for him to do so. This depended on whether the direction was ‘lawful and reasonable’.

The Commission found the direction was not lawful and reasonable as the policy did not comply with the provisions of the Privacy Act 1988 (Cth) (“the Privacy Act”) in respect to the collection of ‘sensitive information’ (the definition of which includes fingerprints). For example, the policy did not require employees to consent to the collection of their biometric data, which was a breach of the Privacy Act in this case.

As Mr Lee was not contractually bound to comply with the policy in question, and the direction to comply with the policy was not lawful and reasonable, the Commission found there could be no valid reason for Mr Lee’s dismissal based on his refusal to comply.

Lessons for employers

Despite the unusual nature of Mr Lee’s case, it presents some very straightforward and valuable learnings for employers:

  • It is vital all employers ensure the wording of their employment contracts require compliance with all workplace policies, irrespective of when they are amended or introduced.
  • It is also very important that workplace policies accurately reflect the law. As the law is always evolving, particularly when it comes to technology, employers should be reviewing and amending their policies regularly to ensure they are up to date and can be relied upon to initiate any form of disciplinary action.

How we can help

If you require any assistance in updating your employment contracts or workplace policies please contact Employment Innovations. Our clients can obtain unlimited workplace advice through our subscription products, and access all the best-practice HR documents and templates you’ll need. If you are facing an unfair dismissal or other legal claim, our legal team would be more than happy to assist.