Mark Branagan and Elodie Bethuel

COVID-19 clashes – employer rights, work health and safety and privacy

Mark Branagan and Elodie Bethuel

6 July 2020

Employment Disputes Work Health and Safety

As the effects of COVID-19 continue to shape the workplace, the Fair Work Commission (FWC) was recently called upon to consider the clashes between an employer’s right to seek information related to an employee’s travel activities, work health and safety (WHS) obligations, and privacy protections.

On 29 June 2020, the FWC dismissed an unfair dismissal application by an employee, Knight, who refused to complete his employer’s internal WHS survey regarding recent overseas travel[1].

Knight worked as a consultant for One Key Resources (One Key), which provides recruitment and labour-hire services within the resources sector throughout Asia Pacific. A large number of company employees regularly travelled overseas and, in response to COVID-19, the company introduced a policy in March 2020 requiring employees to disclose their recent international travel. Employees such as Knight also worked in close physical proximity to each other and were exposed to candidates in one-on-one interviews.

Knight refused to complete the survey – claiming both that it was irrelevant to him, as he never travelled for work, and also that the request breached privacy laws. After consultation and warnings, One Key dismissed Knight for failing to follow a lawful and reasonable direction.

Commissioner Simpson of the FWC found that the survey request was lawful and reasonable, particularly given the employer’s obligation to comply with WHS duties and relevant Federal and State Government guidelines responding to the COVID-19 outbreak. In this context, Knight’s refusal to comply with the travel survey direction provided a valid reason for termination under the FW Act.

Knight’s alternative argument about his rights under the Privacy Act 1988 (Cth) (Privacy Act) had relied upon the Full Bench decision in Lee v Superior Wood Pty Ltd [2019] FWCFB 2946. In Lee, the Commission found that an employer’s request to obtain fingerprint data (a form of ‘sensitive personal information’) from employees was in breach of the Australian Privacy Principles (APPs) and was therefore not a lawful or reasonable direction. Accordingly, the employee was entitled to refuse the request under the Privacy Act, and there was no valid basis for the dismissal.

By contrast, in Knight’s case, Simpson C found that the information sought in the survey was not ‘sensitive personal information’ under the Privacy Act. The survey did not ask Knight to describe symptoms or provide private medical history, it simply sought travel history, limited to 10 countries, so as to determine whether he might be in an at risk category. The survey request was entirely consistent with One Key’s WHS obligations. On that basis, the survey request was lawful and reasonable, and provided a valid reason for the termination. As One Key’s actions were also procedurally fair, the FWC dismissed Knight’s claim.

Of additional significance in the COVID-19 world, Simpson C noted that the Privacy Act also contains some exemptions for information handling by employers in ‘permitted general situations’ – which includes actions taken to lessen or prevent a serious threat to life, health or safety of an individual or the public. These observations are pertinent and will provide some relief to employers managing WHS risks in workplaces in responding to the pandemic.

This decision serves as a reminder that employers must carefully consider their responses to COVID-19. While health and safety concerns are clearly heightened in these times, employers and employees must still consider the justification for their actions; handle matters sensitively; and importantly take time to reflect on obligations under the Privacy Act.  This will help ensure adequate policies, and compliant collection and usage practices. The shadow of privacy laws over employer conduct should not be underestimated, as clashes between employer and employee rights are likely to increase in workplaces dealing with COVID-19.

For further information, please contact our national Employment, Workplace Relations and Safety team.

[1] Knight v One Key Resources [2020] FWC 3324