The Respondent required all employees to complete a COVID-19 survey which sought information about whether employees had travelled to high risk or moderate risk countries from 1 February 2020 to 6 March 2020, and whether they had any travel plans in the near future.
The applicant objected to filling out the survey on the basis the respondent did not need to know his future and previous travel plans. Following this, the applicant was issued with a written warning requiring him to comply with a lawful direction to complete the survey and advising him that a failure to comply with the direction may result in termination of his employment.
The applicant again refused to complete the survey on the basis that it was personal in nature and allegedly verged on breaching privacy laws. Subsequently, the applicant's employment was terminated for refusal to comply with a lawful direction. The applicant then brought an unfair dismissal application.
The applicant alleged the direction to complete the survey was in breach of the Privacy Act 1988 (Cth) (Privacy Act) and in particular Australian Privacy Principle 3 which prohibits the collection of sensitive information about an individual unless that person consents to the collection of the information, and the information is reasonably necessary for one or more of the entity's functions or activities. Reliance was placed upon the Full Bench decision of Lee v Superior Wood Pty Ltd  FWCFB 2946 in which the Full Bench found that an employee was unfairly dismissed when he refused to use a biometric scanner on entry to the workplace.
The Commission found the information requested by the survey was not sensitive information, as defined in the Privacy Act as it did not request sensitive health information about the employee. For example, it did not ask for a description of any symptoms that might indicate whether he had contracted the virus and instead simply requested travel information.
Further, the Commissioner said that if he was wrong on that point, given the circumstances of the epidemic at that time, it was likely that a permitted general situation exemption under the Australian Privacy Principle 3.4 would have applied. This was because it was unreasonable to obtain the applicant's consent and the employer reasonably believed the collection was necessary to lessen or prevent a serious threat to the life, health or safety of an individual or to public health or safety.
More generally, the applicant's employment contract required him to follow all reasonable and lawful directions. In this context, the Commission found the direction was both lawful and reasonable and the applicant refused on several occasions to follow the direction.
Accordingly, the Commission found, on the basis of the repeated refusals of a lawful and reasonable direction given by the employer for the purpose of attempting to fulfil its obligations under WHS laws, the respondent had a valid reason for the dismissal.
The decision provides useful guidance as to what information can lawfully be sought from an employee as part of discharging its WHS obligations in a pandemic.
If you require further information or have any queries in relation to this legal update, please contact Mark Curran or a member of our Employment or Safety teams.