A sawmill worker in Queensland has sparked a new national conversation on the privacy of biometric data after he was fired for refusing to give his fingerprints to his employer.
Jeremy Lee launched legal action against his former employer, in what is being described as the first unfair dismissal case of its kind in Australia, with a case centered on the ownership of data- and the circumstances in which someone can be compelled to hand over their personal data.
More specifically, as Jeremy Lee told The ABC’s Law Report, “It’s my biometric data,” he said. “It’s not appropriate for them to have it.”
Lee’s employer stated that the recently-implemented security system that used fingerprints was to more accurately monitor who was on-site. Lee argued to the court that there were other means of achieving this, like swipe cards.
Jeremy Lee’s employer disagreed, and he was dismissed for his failure to fall in line in February 2018. He launched an unfair dismissal case which was heard by a single commissioner, who ruled that the scanning system was a reasonable policy. Lee’s employer, according to the commissioner was within its right to require employees to submit their biometric data, and terminate those who didn’t.
In the appeals process, Mr Lee represented himself at the Fair Work Commission- and won.
“I was insisting that my biometric data is mine,” he said.
“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.”
“Surely if my employer tries to get it and sacks me for refusing to give it, that is illegal. That was my argument,” he said.
On the 1st of May, 2019, the Fair Work Commission ruled that Mr Lee had been unfairly dismissed, ruling that the sawmill’s policy had violated the Privacy Act.
According to the ABC, “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.”
“It’s extraordinary,” head of employment law with Maurice Blackburn lawyers, Josh Borstein told The Law Report. “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,” he said.
Borstein said that Jeremy Lee’s case represented the first in a new-found and complicated legislative grey area regarding the combination of technology and privacy.
“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,” Lee said.
He continued to explain that “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… there’s no doubt regulation is lagging well behind the development of technology.”
As for the matter of who owns biometric data, Borstein told the ABC that it remains 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 ever broader argument that’s more philosophical in nature.”
Jeremy Lee’s case did not set a legal precedent, as he was hoping, but it has acted as the catalyst for a new conversation regarding worker’s rights with their biometric data, as well as the legal repercussions of refusing to do so.