| [2020] FWC 3324 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kieran Knight
v
One Key Resources (Mining) Pty Ltd T/A One Key Resources
(U2020/3522)
COMMISSIONER SIMPSON |
BRISBANE, 29 JUNE 2020 |
Application for an unfair dismissal remedy - Applicant failed to follow a reasonable and lawful direction – application dismissed.
[1] Mr Kieran Knight has made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against One Key Resources (Mining) Pty Ltd T/A One Key Resources (the Respondent).
[2] The matter did not settle at conciliation and was allocated to me. I issued directions for the filing of material, and the matter was listed for Hearing by telephone on 15 June 2020. Mr Nigel Saines of Saines Legal appeared for Mr Knight and Mr Aaron Potts of Morgan Alteruthemeyer Commercial Lawyers & Migration Agents appeared for the Respondent.
[3] Both parties were granted leave to be represented in the matter.
[4] Section 385 provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[5] The Respondent is not a small business employer.
[6] Mr Knight was the only witness to give evidence in his case and his witness statement was admitted into evidence. 1 The Respondent called Ms Bianca Taylor the Country Human Resource Manager employed by Fircroft Australia Pty Ltd (Fircroft) who provided a witness statement2, and Ms Hayley Taylor, a Recruitment Manager employed by the Respondent who was at all material times the immediate supervisor of Mr Knight also provided a witness statement.3
[7] The Respondent is a subsidiary of Fircroft Group – Asia Pacific (Fircroft) that operates in six countries and provides recruitment, placement and labour hire services in the oil and gas and mining industries throughout the Asia Pacific Region.
[8] On 13 March 2019, Mr Knight commenced employment with the Respondent in the position of Recruitment Consultant. Mr Knight was employed in this role up until his dismissal. A written employment contract was tendered by Mr Knight, indicating that he was employed on a permanent full-time basis. The employer contract was signed by Mr Knight on 20 March 2019.
[9] The Respondent maintained that Mr Knight’s employment was terminated due to him failing to follow a reasonable and lawful direction after receiving a warning letter and email confirming that he still refused to comply with the direction.
[10] The Respondent submitted that Fircroft retained approximately 3,200 employees as of February 2020, and that a significant number of these employees were travelling both within and outside of Australia in the performance of their duties. 4 The employees at the Brisbane office work closely in an enclosed environment, and the Respondent submitted this environment makes them extremely exposed to any contagious diseases. The Respondent also submitted this created a secondary risk to job seekers and clients seeking employees when face to face meetings occurred.
[11] The Respondent submitted that in early February 2020, it assessed its obligations as an employer to reduce exposing its employees to unnecessary risks associated with the COVID-19 pandemic in both its own workplaces and clients’ sites.
[12] On 6 March 2020, the Respondent emailed all employees stating that it wished to ensure the highest level of safety for its workers and that, in line with the Australian Government of Health directions, certain countries had been identified as high-risk or moderate risk. The email outlined the countries and stated that anyone who had recently travelled to a high-risk country should quarantine for 14 days pursuant to the Government directions. It also informed employees of what symptoms to look for which might indicate they were infected with COVID-19. It also stated that, if the employees had travelled to a country or region that was a moderate-risk country for COVID-19, they should monitor their health for the next 14 days, wash their hands frequently and cover their mouth if they had the need to cough or sneeze. The email also instructed employees what to do if they were feeling unwell and asked them to attend a doctor and await confirmation before they returned to work.
[13] The email also stated that, to enable the Respondent to adequately monitor any risk for its employees, all employees were required to complete the COVID-19 survey by clicking on an electronic link named “Survey Link”. Employees were asked to complete the survey as a matter of urgency.
[14] Mr Knight gave evidence that on 8 or 9 March 2020, the Respondent emailed him a survey seeking the following information which he described as Information Requested 1:
• My name;
• All previous travel history outside of Australia; and
• Any travel plans within the next 6 months with locations and dates.
[15] Upon receipt of the questionnaire, Mr Knight stated that he held concerns about the scope of the information requested as he was of the understanding that the current assessment criteria at the time for risk of COVID-19 was as follows; if a person had been overseas in the past two weeks or if a person had been in direct contact with someone in the past two weeks who had been diagnosed with COVID-19.
[16] Mr Knight submitted that during his employment, he did not travel for work nor were there any plans for him to travel for work in the future. Mr Knight also submitted that the Respondent had a copy of his annual leave requests that indicted he had not taken leave since the 2019/2020 Christmas closure period, and that he had no future annual leave requests for anticipated leave.
[17] The Respondent submitted that the Survey only asked for non-sensitive information regarding whether employees had travelled to high-risk or moderate risk countries from 1 February 2020 to 6 March 2020 and asked whether they had any travel plans in the near future. The Respondent submitted that it was deliberately designed to be as non-invasive and direct as possible to deal only with the Respondent’s risk of potential exposure to COVID-19. The Respondent submitted that Mr Knight received the email and did not raise his concerns on 6 March 2020.
[18] Mr Knight accepted his witness statement was incorrect in that the email was sent on 6 March and not 8 or 9 March as he said in his statement. Mr Knight also accepted that his witness statement was incorrect in that the survey did not request all previous travel history outside of Australia as he said in his statement, and the request for previous travel outside of Australia was confined to the period from 1 February 2020 and to 10 foreign countries.
[19] Mr Knight also accepted if he had travelled to a high-risk country he would be asked to quarantine himself for 14 days, and if he travelled to a moderate risk country he would be asked to monitor his own health for 14 days.
[20] Mr Knight was cross examined about paragraph 13 and 14 of his statement where he said as follows:
“13. Shortly after receiving the survey asking for Information Requested 1, I spoke with Mrs Hayley Taylor (My Direct Manager for the Respondent) via, advising:
a. I was of the view that the Requested Information 1 was private in nature;
b. Did not understand how my data would be used;
c. Raised concerns about how the Respondent was making assessments of my risk of Covid 19 on Requested Information 1; and
d. Did not understand how the data would be stored.
14. At the end of the phone call with Ms Hayley Taylor, it was my understanding that I did not need to provide Requested Information 1, but she asked that I email Mr Glenn Triggs (Director of Respondent) and Ms Bianca Taylor (Human Resource Manager for the Respondent) advising that I would not be providing the information.”
[21] It was put to Mr Knight that the conversation he referred to as occurring “Shortly after the survey”, did not occur until 11 March. Mr Knight appeared to accept that he only had a brief discussion with Ms Hayley Taylor and he did not raise the issues he referred to in paragraph 13 of his statement on 6 March. He agreed he raised these issues the following week, however said he did raise a general concern in an initial discussion with Ms Hayley Taylor that he was not happy with the survey as it was a breach of his privacy and that he did not say any more than that. He accepted he did not say anything about his data would be used.
[22] Mr Knight accepted that contrary to what he put in his written statement he did not at any time raise a concern about how the data would be stored. He also accepted that he did not say anything to Ms Hayley Taylor about how the data would be stored on 6 March.
[23] It was put to Mr Knight that he had no conversation with Ms Hayley Taylor when the survey was first sent out on 6 March 2020 and he only raised his concerns after the second email request from Mr Triggs on 11 June 2020. He accepted that contrary to what he said in his paragraph 14, he did not have a phone discussion with Ms Hayley Taylor on 6 March and said it was a verbal conversation as he sat close to Ms Hayley Taylor in the office. He agreed that when he did speak to Ms Hayley Taylor she said to put his concerns to Ms Bianca Taylor and Mr Triggs.
[24] The Respondent submitted that a further email was sent to all staff on 11 March from Mr Triggs asking any person who had not completed the survey to complete it as soon as possible as it was compulsory. Mr Knight was one of the employees who had not completed the survey. The Respondent submitted that Mr Knight became quite vocal regarding the survey and said he had not completed the survey and gave a number of reasons why.
[25] Ms Bianca Knight said that on Wednesday 11 March 2020, Mr Glenn Triggs, the Australasian Managing Director of Fircroft Group, sent a follow up email to all employees who had not yet completed the Survey asking them to complete the survey by close of business Thursday 12 March 2020. Ms Hayley Taylor gave similar evidence about the reminder email being sent by Mr Triggs.
[26] Ms Hayley Taylor said after receiving the email from Mr Triggs she asked her team if everybody had filled out the survey and she said Mr Knight became quite vocal about not wanting to complete the survey. Ms Hayley Taylor said they worked in an open plan office and she sits a few seats behind Mr Knight with other employees. Ms Taylor said she, and other employees could hear him saying that he thought the survey was a joke; that they would know his leave anyway; and he would not sign it, and it was a breach of his privacy. Ms Hayley Taylor said she asked Mr Knight if he had read the survey questions and he replied that he had but he still did not have to answer them. Ms Taylor said she was not aware of any other employee complaining about completing the survey.
[27] Ms Hayley Taylor said that given Mr Knight’s behaviour in front of other employees she told him that she would like him to act a bit more professionally, and that if he had an issue with the survey he should contact either Mr Triggs or Ms Bianca Taylor to put his concerns to them as to why he refused to fill out the survey. It seems the conversation Mr Knight described in his statement at paragraph 13 is likely to have been a description of a conversation Ms Hayley Taylor referred to in her evidence as having taken place on the afternoon of 11 March 2020, and not on 6 March.
[28] Mr Knight submitted that, after his discussion with Ms Hayley Taylor which it now seems from the evidence occurred on the afternoon of 11 March, it was his understanding that he did not need to provide the requested information and instead he was required to advise Mr Glenn Triggs and Ms Bianca Taylor, that he would not be providing the information.
[29] Ms Hayley Taylor said that she read Mr Knight’s statement and with regard to paragraph 13, at no time when Mr Knight spoke to her did she recall him saying he did not understand how his data would be used and he did not raise concerns about how the Respondent would be making risk assessments as to COVID-19 from the survey. In her oral evidence Ms Hayley Taylor said it was not until the reminder to fill out the survey later when she asked the whole team if they had filled out the whole survey that Mr Knight raised concerns about the survey.
[30] On the available evidence I am not inclined to the view that Ms Hayley Taylor did not say anything to Mr Knight that would have indicated he was no longer required to provide the information as appeared to be inferred from the evidence of Mr Knight at his paragraph 14. Mr Knight accepted Ms Hayley Taylor instructed him to put his concerns to Mr Triggs and Ms Bianca Taylor.
[31] Mr Knight sent the following email to Mr Triggs on 12 March.
“Hi Glenn,
As per Hayley’s previous email, you have asked why I refused to do the COVID 19 survey.
I understand as a business you have obligations to minimise the risk of potential exposure to COVID 19 to all workers (field and office)
I only have a (sic) obligation to notify you as an employer IF I pose a WHS risk to my fellow workers or myself. E.g. if I contracted COVID-19
You do not need to know my future and previous plans for travel – simply put this is irrelevant information that is not required to assess the risk posed by COVID 19 to the workplace.
As per the governments advice from the Department of Health
Employers need to concentrate on risk reduction and prevention methods to minimize the risk of spreading this infection to “high risk” category individuals, by putting in place physical barriers/self-isolation and minimising human contact where possible
Please don’t hesitate to contact me if you need any further clarification.
Kind Regards,
Kieran Knight
Recruitment Consultant..”
[32] It was put to Mr Knight that his email accepted that the Respondent had workplace health and safety obligations and he agreed. Mr Knight was asked if he had gone to Beijing in the last month would he have disclosed that and he said yes. He was asked if he would have been prepared to disclose that he had gone to Beijing, why he would not answer the survey. Mr Knight did not answer the question directly but then said in his oral evidence that he had no trouble with the first two questions but did (have trouble) with the third question.
[33] It was then put to Mr Knight that he did not say in his reply email to Mr Triggs of 12 March that he had no concerns with first two questions where he flatly refused (to complete the survey). Mr Knight again confirmed in his oral evidence that he had no problems with the first two questions.
[34] Ms Bianca Taylor gave evidence that the survey questions were based on the then Government directions to assess at risk individuals and was deliberately designed to be limited and non-invasive.
[35] Ms Bianca Taylor said the questions regarding travel history were limited to an employee’s travel history only from 1 February 2020 and to 10 (ten) foreign countries which at that time were deemed to be high to moderate risk countries from the Federal Government advice. Ms Bianca Taylor said every employee of the Respondent completed the survey without complaint except for Mr Knight.
[36] Ms Bianca Knight said on 12 March 2020 she received a copy of an email sent from Mr Knight to Mr Triggs stating that he refused to fill out the survey. Ms Bianca Knight said she discussed the refusal to complete the survey with Mr Triggs and it was determined that directing the completion of the survey was both a lawful and reasonable direction.
[37] Ms Hayley Taylor said she spoke to Ms Bianca Taylor and Ms Bianca Taylor asked her whether Mr Knight would complete the survey. Ms Hayley Taylor said she told Ms Bianca Taylor she did not think Mr Knight would complete the survey and Ms Bianca Taylor confirmed to her that she might draft a warning letter.
[38] Ms Bianca Taylor said that on 13 March she drafted a warning letter addressed to Mr Knight, which was emailed to Ms Hayley Taylor in the Brisbane office late on Friday 13 March 2020. Ms Bianca Taylor said the warning letter was to be given to Mr Knight on Monday morning of 16 March 2020.
[39] Ms Hayley Taylor said that between 12 March and 16 March she recalled Mr Knight saying in the open office to the other employees that the survey was a joke, that people should not sign it, that they did not have to and that it was a breach of their privacy. Ms Hayley Taylor said that she also remembered Mr Knight saying that he had been in the Army, that he knew what a lawful direction was, and that the completion of the survey was not a lawful direction.
[40] Ms Hayley Taylor said that she recalled telling Mr Knight to stop talking to other employees about the survey as it was causing disruption to their work.
[41] Ms Hayley Taylor said that on the morning of 16 March 2020, she received an email (which had been sent late on Friday 13 March) from Ms Bianca Taylor with an attached warning letter to be given to Mr Knight. Ms Hayley Taylor said she printed out the warning letter and she told Mr Knight that she needed to speak to him in private.
[42] Ms Hayley Taylor said they went into a private room and she told Mr Knight that she had been told to give him a warning letter from Ms Bianca Taylor regarding his refusal to complete the survey and handed him the letter. Ms Hayley Taylor said Mr Knight then said to her that he thought this was a joke, and he looked noticeably upset and said he would be in contact with Ms Bianca Taylor. Ms Hayley Taylor said Mr Knight then advised her that he would not complete the survey under any circumstances. The warning letter read as follows:
“Dear Kieran
RE: WRITTEN WARNING
This letter is about your behaviour during your employment with One Key Resources. On 6 March 2010 all staff were directed to complete a survey to enable the business to ascertain any potential exposure for all employees to COVID-19 in the workplace. A reminder to complete the survey was sent on 11 March 2020. The directive to complete the survey was a lawful direction.
On 12 March 2020 you e-mailed Glenn Triggs (Managing Director Australasia) and outlined your refusal to comply with the lawful direction.
This is your first warning and you are required to immediately comply with the lawful direction and complete the survey. Failure to comply with the lawful direction will result in further disciplinary action which may include the termination of your employment.
If you wish to respond to this letter, please do so by contacting the undersigned.”
[43] Ms Bianca Taylor said she understood the warning letter was given to Mr Knight by Ms Hayley Taylor on the morning of 16 March 2020. Ms Bianca Taylor said Ms Hayley Taylor sent her an email on 16 March 2020 confirming that she had issued the warning letter to Mr Knight and that he was still refusing to complete the survey, was arguing that it was not a lawful direction and was being disruptive with the other employees.
[44] Ms Bianca Taylor received an email from Mr Knight at 7.30am (WST) which Ms Hayley Taylor said was sent at 9.30am being the time in Brisbane.
[45] The email read as follows:
“Hi Bianca,
I am writing in regards to your written warning letter issued 13/03/2020
I would like you to clarify EXACTLY what grounds and what specific lawful direction I have refused to follow – please provide further specific and exact details.
The information requested in the survey is personal in nature and what you are requesting is verging on a breach of privacy laws.
Completing the survey is not a lawful direction in regards to risk management or a lawful directive by a PCBU.
I am not putting myself or anyone in the business at risk with my refusal to provide the information that you have requested on my intended travel movements.
I therefore have not refused to follow a lawful work Health Safety directive by a senior manager by refusing to complete the survey.
This therefore makes your warning letter for failure to follow a lawful direction, incorrect, and without grounds.
The survey and information contained within is a request for present and future personal information/data which is not necessary for the risk management of the outbreak of COVID-19
If you wish to have further clarification around my position please don’t hesitate to contact me.
Kind Regards,
Kieran Knight
Recruitment Consultant..”
[46] Ms Hayley Taylor said that she sent a reply email to Ms Bianca Taylor copying in Mr Triggs and two others in which she said that she had issued the warning letter and that Mr Knight had continued to argue about it, saying he still refused to complete the survey. The email reads as follows:
“Hi Bianca
I issued the warning letter to Kieran this morning in which he has continued to argue about.
If someone can please advise on what to do next as he has emailed Bianca and still refusing to complete the survey.
Kieran has tried to voice this in the team this morning in which I have told him to stop as it is unprofessional and causes tension within the team.
Kind Regards,
Hayley..”
[47] Mr Knight said at paragraph 19 of his witness statement as follows:
“19. Following meeting 1, I wrote to B Taylor advising that:
a. I would be happy to provide some information if the scope was reduced to only necessary information; and
b. I would inform the business if I became aware that I may have been exposed or in contact with someone who had COVID-19 risk.
[48] It was put to Mr Knight that the warning letter said he failed to comply with a lawful direction and says very clearly that he was at risk of termination.
[49] It was put to Mr Knight that his evidence in paragraph 19 was clearly incorrect as it says he wrote to Ms Bianca Taylor advising that he would be happy to provide some information however that was not true. Mr Knight accepted in his oral evidence that he did not offer to provide some information.
[50] Mr Knight also said at his paragraph 20 that Mr Bianca Taylor wrote him an email wherein she again asked if he would provide the requested information. Ms Bianca Taylor said she sent an email to Mr Knight in response to his email, at 9.04am (WST) and asked him to confirm if he still refused to complete the survey. The email read as follows:
“Hi Kieran
Completing the survey is a lawful direction and all employees are required to complete this survey.
Can you please confirm if you are still refusing to comply with this lawful direction?
Thankyou
Bianca”
[51] Mr Knight said in his statement at paragraph 21 that he replied to this email where he again raised concerns about the requested information and asked for information on:
a. Why the Respondent required the requested information, and
b. How the information would be used to assess his COVID-19 risk.
[52] Excerpts from Mr Knights email included the following:
“Hi Bianca,
You have not answered my question.
My contract only is for a Brisbane based position – no travel is applicable to my position.
Please guide me to the relevant legislation under the WHS Act 2011 where a PCBU is required to obtain my future travel information from myself to enable you as an organisation to assess the risk posed by COVID 19.
• I am not inhibiting your ability to conduct risk management, compliance, or your ability to comply with the WHS 2011 Act
• Neither am I not taking reasonable care and due diligence for my own or my co-workers Work Health and Safety including my acts or omissions.
• I am complying so far as is reasonably able – with all reasonable instructions to allow you to comply with the WHS Act 2011
See below except from the WHS Act 2011 (Latest version)….
…………….
…………….
You are asking for personal travel information for the year 2020 which is not needed to assess the current risk of COVID19 contraction to myself or my co-workers.
Therefore the non-completion of the survey sent to my email is NOT a lawful direction when pertaining to Workplace Health and Safety.
I ask that you kindly rescind your written warning letter as you have no basis upon to issue a written warning.
Hope this clarifies my position for you.
Thanks
Kind Regards,
Kieran Knight”
[53] During his oral evidence Mr Knight accepted that he did not ask for the information as he claimed in his statement at paragraph 21(b).
[54] Ms Bianca Taylor said from the content and tone of Mr Knights emails it was clear Mr Knight would not complete the survey and he seemed to be more interested in lecturing management on what the current law or obligations were surrounding a lawful direction.
[55] Ms Bianca Taylor said that based on Mr Knight’s refusal to complete the survey, the Respondent took the decision that Mr Knight’s actions were putting the firm’s health and safety at risk and, given the uncertainty of the rapidly increasing cases of COVID-19 at the time in Australia, Ms Bianca Taylor said that consequently it was decided to terminate Mr Knight’s employment immediately. Ms Bianca Taylor said she drafted a termination letter which she emailed to Ms Hayley Taylor and others. Ms Bianca Taylor said she understood the termination letter was given to Mr Knight on 16 March and his employment was terminated.
[56] Ms Hayley Taylor said that she received the email from Ms Bianca Taylor to which was attached the termination letter. The email requested that Ms Hayley Taylor immediately terminate Mr Knight’s employment. Ms Hayley Taylor said she printed out the letter and called Mr Knight into a private room where two other employees of the Respondent, Ms Rachel Small (Workplace Health and Safety Manager) and Mr Trevor Cliff (Manager of Fircroft Group) were also present. Ms Hayley Taylor said that Ms Small handed Mr Knight the letter and he was told that he was being terminated immediately, that he had to pack his things and leave the premises immediately.
[57] A termination letter was provided to Mr Knight, that read:
“Dear Kieran
RE: TERMINATION OF EMPLOYMENT
This letter is about your termination of employment with One Key Resources.
On 12 March 2020 you e-mailed Glenn Triggs (Managing Director Australasia) and refused to comply with a lawful direction to complete a survey relating to COVID-19. You were issued with a formal warning letter dated 13 March 2020 which stated that if you did not comply with the lawful direction your employment may be terminated.
On 16 March 2020 you again refused to comply with the lawful direction and complete the survey.
We consider that your conduct is still unsatisfactory and have decided to terminate your employment for your continued wilful refusal to comply with our lawful direction.
Your employment will end immediately. Based on your length of service, your notice period is two weeks. In lieu of receiving that notice, you will be paid the equivalent salary.
You will also be paid your accrued entitlements and outstanding remuneration, including superannuation, up to and including your last day of employment.”
[58] The Respondent submitted that at the time of termination, the Respondent paid Mr Knight two weeks in lieu of notice, notwithstanding the fact that the dismissal was on the basis of what the Respondent considered to be a wilful refusal to comply with a lawful direction.
[59] The Respondent’s decision to terminate Mr Knight’s employed was on the basis that Mr Knight had engaged in misconduct for failing to follow a lawful and reasonable direction to complete a survey.
[60] Mr Knight disputed that he engaged in misconduct. In advancing his position, Mr Knight submitted that the direction for information was in breach of the Australian Privacy Principles in Schedule 1 of the Privacy Act 1988 (Cth). Consequently, the Respondent’s request was neither a lawful nor reasonable direction.
[61] Mr Knight relied on the decision of the Full Bench in Lee v Wood. 5 The Full Bench of the Commission found:
“… we consider the direction to Mr Lee to submit to the collection of his fingerprint data, in circumstances where he did not consent to that collection, was not a lawful direction. Moreover we consider that any “consent” that he might have given once told that he faced discipline or dismissal would likely have been vitiated by the threat. It would not have been genuine consent. Given this finding, it is not necessary to consider whether the direction was reasonable. Nonetheless had it been necessary to do so we conclude the direction was unreasonable. A necessary counterpart to a right to consent to a thing is a right to refuse it. A direction to a person to give consent does not vest in that person a meaningful right at all. Such a direction is in the circumstances of this case, unreasonable. It was not a valid reason for dismissal.”
[62] In Lee, the Full Bench considered the Australian Privacy Principles found in Schedule 1 to the Privacy Act:
“[39] Principle 1 provides for open and transparent management of personal information. Among other things, it requires (at 1.3) that entities have a clearly expressed and up to date policy about their management of personal information.
[40] Principle 3 deals with the collection of solicited personal information that is solicited by an APP entity. It 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 (at 3.3). ‘Sensitive information’ includes biometric information that is to be used for the purpose of automated biometric verification or biometric identification. 38 It is not in dispute that the collection of fingerprint data by the scanners meets the description of sensitive information. Collection of personal information may only occur by lawful and fair means (at 3.5).
……………...”
[63] In regards to Principle 3, the Full Bench found:
“An entity “solicits” personal information if it requests another entity to provide the personal information. The express requirement to obtain an individual’s consent would become meaningless if Principle 3 was only enlivened once information had been collected. Construed in context, Principle 3 applies both to the solicitation and collection of sensitive information. It necessarily operates at a time before collection, because an APP entity ‘must not’ collect sensitive information ‘unless’ the individual consents to that collection. Any collection that occurs without first having obtained consent to that collection would be contrary to Principle 3.”
[footnotes omitted]
[64] It has been submitted for Mr Knight that the request for information in the survey was in breach of Principle 3 of the Australian Privacy Principles, and was neither lawful or reasonable. Mr Knight argues the purpose of the request for the information was to assess Mr Knight’s risk of the medical condition COVID-19. Whilst it is clear from the evidence Mr Knight objected to completing the survey on the basis of the scope of information requested, contrary to submissions of Mr Knight it is not evident that he made any request of the Respondent to explain how the information would be used or how it would be used to assess his health risk.
[65] Mr Knight submitted that in accordance with the definition of sensitive information contained at section 6 of the Privacy Act 1988 it includes health information about an individual. In accordance with section 6 health information is defined as follows:
health information means:
(a) information or an opinion about:
(i) the health or a disability (at any time) of an individual; or
(ii) an individual’s expressed wishes about the future provision of health services to him or her; or
(iii) a health service provided, or to be provided, to an individual;
that is also personal information; or
(b) other personal information collected to provide, or in providing, a health service; or
(c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances; or
(d) genetic information about an individual in a form that is, or could be, predictive of the health of the individual or a genetic relative of the individual.
[66] Mr Knight argued Ms Bianca Taylor gave evidence that the purpose of the survey was to make an assessment of Mr Knight’s health condition. Mr Knight referred to page 3 of the advice of the Office of the Australian Information Commissioner issued on 18 March 2020 attached to the submissions of the Respondent which included the following:
“Personal Information and sensitive information
Personal information includes a broad range of information, or an opinion, that can identify an individual. It includes an individual’s employee record information. It also includes ‘sensitive information’ which is afforded higher protection under the Privacy Act. Sensitive information includes information or an opinion about the health of an individual.
Information gathered about an individual that relates to infection and risk of exposure with COVID-19 will be sensitive information under the Privacy Act. Related information about the individuals symptoms, treatment or general health status will also be sensitive information.
Consent is not necessary if the collection is required or authorised under by or under an Australian law (APP 3.4(a)) or a ‘permitted general situation’ exists (APP 3.4(b)). This includes where the collection is undertaken to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health and safety.”
[67] Mr Knight submitted that the Respondent attempted to collect sensitive information and when Mr Knight refused to provide the information he was terminated, and because it was for the purpose of assessing the health risk of the Mr Knight it was sensitive information. Further it was submitted that post the warning letter Mr Knight could not have consented to give the information, and therefore the direction cannot be lawful or reasonable and the dismissal was unfair.
[68] The Respondent submitted that pursuant to section 18 of the Workplace Health and Safety Act 2011 (Qld) (WH&S Act) it must do what is reasonably practical in ensuring the health and safety of its workers and, in deciding what is reasonably practical, must take into account all relevant factors including:
“(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about –
(i) the hazard or the risk; and
(ii) ways to eliminate or minimise the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk.”
[69] The Respondent submitted that given the unfolding pandemic at the time, asking for the details of Mr Knight’s recent travel and any plans for future travel was reasonable pursuant to section 18 of the WH&S Act.
[70] The Respondent submitted that pursuant to section 19 of the WH&S Act the Respondent owes a primary duty of care and the provision and maintenance of a work environment without risk to health and safety. Further the Respondent submitted that pursuant to section 28(c) of the WH&S Act the Respondent’s employees have duties to:
“(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and
(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health and safety at the workplace that has been notified to workers”.
[71] The Respondent submitted that it can be exposed to significant statutory penalties if it does not comply with its duties. The Respondent submitted that if it did not take proper precautions in assessing the risk of COVID-19 exposure to its employees, it would have been in breach of its duties pursuant to the WH&S Act. It says coupled with the Government guidelines regarding the current crisis, it is asserted that the survey request was lawful pursuant to the WH&S Act and the Government guidelines issued at the time.
[72] The Respondent submitted that the Department of Health website clearly shows that in late February/early March 2020 the number of COVID-19 cases was increasing significantly and the world was in the grip of an exponentially expanding pandemic. The Respondent submitted that at that time there was significant uncertainty as to how to deal with the issue and it was prior to the Federal and State Government mandates with regards to quarantine.
[73] The Respondent submitted that it is entitled to treat the failure to carry out a lawful and reasonable instruction that is consistent with the Employment Contract as having the employee engaging in serious misconduct given at all times the direction to complete the survey was at a reasonable and lawful direction.
[74] The Respondent concedes that it is bound by the provisions of the Privacy Act 1988. The Respondent conceded that it requested personal information from Mr Knight, and the collection of data would constitute personal data of Mr Knight.
[75] The Respondent denied Mr Knight’s submission that the completion of the survey was sensitive information as defined by section 6 of the Privacy Act 1988 as sensitive information only related to information to identify the individual with regards to their racial or ethnic origin, political opinions, membership of a political association, religious beliefs or affiliations, philosophical beliefs, membership of a professional trade association, membership of a trade union, sexual preferences or practices, criminal record, health information, health genetic or biometric information relating to Mr Knight.
[76] The Respondent said a request for health information in relation to Mr Knight might have been as an example a request for medical records, however the Respondent did not ask for medical records, it says it asked for travel information to assess the risk of COVID 19 to the Respondent and its employees, not to determine whether Mr Knight had COVID 19. The Respondent submitted that if an employee responded that they had been to a high-risk country they would have been told to go home and quarantine themselves so as not to put employees at risk, and if an employee’s response indicated they had been in a moderate risk country they would have been asked to take an appropriate response. The Respondent said it was not practical to make the survey anonymous.
[77] The Respondent submitted that as such it was not required to have the consent or permission of Mr Knight for a request for non-sensitive personal information that was lawful and reasonable, and therefore the Privacy Act 1988 creates no legislative impediment or barrier to the request for the information in the survey as long as the request was reasonable.
[78] The Respondent submitted that the 18 March 2020 Australian Information Commissioner online communique to employers regarding employers’ rights to request information from their employees dealt directly with the COVID-19 pandemic. The advice provided the following:
“Can we collect information from employees or visitors in relation to COVID-19?
Yes, however you should collect as little information as is reasonably necessary for preventing or managing COVID-19. That includes information that the Department of Health says in needed to identify risk and implement appropriate controls to prevent or manage COVID-19, for example:
• whether the individual or a close contact has been exposed to a known case of COVID-19
• whether the individual has recently travelled overseas and to which countries.”
[79] The Respondent submitted its direction of 6 March and again on 11 March is clearly within the same context of this advice, adding weight to its submission that the direction was lawful and reasonable. The Respondent submitted the advice set about above from the Australian Information Commissioner in no way suggested such a request was sensitive information.
[80] The Respondent submitted the advice on the third page of the Australian Information Commissioner advice is not clear in terms of whether or not asking where an employee has travelled related to the infection or the risk of exposure to the person. The Respondent said this is distinguishable from the facts here because the survey was directed to the risk of exposure of the Respondent itself, not the employee.
[81] The Respondent submitted that in the alternative, an exception exists as described on page 4 of the advice as the COVID 19 pandemic is a permitted and general situation as defined in the Privacy Act 1988. The advice from the Information Commissioner said the following:
“Permitted general situations
The information handling requirements imposed by some APPs do not apply if a ‘permitted general situation’ exists. This exception applies in relation to the collection, use and disclosure of sensitive information.
The most relevant permitted general situation in the current circumstances is ‘lessening or preventing a serious threat to life, health or safety of any individual, or to public health or safety.’ 6 This permitted general situation applies when an APP entity is collecting using or disclosing personal information and:
• It is unreasonable or impractical to obtain the individual’s consent to the collection, use or disclosure, and
• The entity reasonably believes that the collection, use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of an individual, or to public health or safety.”
[82] Section 16A of the Privacy Act 1988 defines a permitted general situation as described in the advice. The Australian Privacy Principles at APPs 3.4(b), APPs 6.2(c), APPs 8.2(d) and 9.2(d) were referenced in the Australian Information Commissioner advice and all refer to the exception applying in a permitted general situation.
[83] Having considered the submissions I prefer the Respondents view that the information requested by the survey was not sensitive information as it did not request sensitive health information about Mr Knight as defined in section 6 of the Privacy Act 1988, for example it did not ask for a description of any symptoms that might indicate whether he had contracted COVID-19, and instead it was requesting travel information from Mr Knight. The purpose of the request was to protect itself and its employees generally against a risk of COVID-19 and to meet its obligations under the WH&S Act, not to collect health information about Mr Knight.
[84] If that view is wrong then given the circumstances of the COVID 19 epidemic at the relevant time, it is likely the permitted general situation exemption would have applied as the circumstances would seem to fall within the meaning of a permitted general situation as defined in section 16A of the Privacy Act 1988. The necessary criteria that it was unreasonable to obtain Mr Knights consent, and the Respondent reasonably believed that the collection was necessary to lessen or prevent a serious threat to life, health or safety of an individual, or to public health or safety appear to be satisfied.
[85] In its submissions the Respondent then referred to clause 8 of Mr Knights employment contract that required him to follow all reasonable and lawful directions given to him by his employer, and to clause 12 of the employment contract that included that Mr Knight agreed to comply with all requirements of Workplace Health and Safety policies and procedures and obligations arising from legislation, and that failure to comply with relevant employer policies, procedures and legislation may result in disciplinary action including dismissal.
[86] The Respondent submitted that the request was made in response to a national health emergency caused by a worldwide pandemic and designed purely to assess the risk of the Respondent and its employees. It says the email of 6 March 2020 attaching the survey clearly articulated the reasons for the information being sought and how the Respondent would deal with employees if the questions were answered in a particular way.
[87] The Respondent submitted that it was difficult to conceive how the questions could have been framed in a less personal way. The Respondent said it has comprehensive privacy policies that Mr Knight knew of, and he would have been aware that there was a low risk of his requested information being misused.
[88] The Respondent submitted that the COVID-19 national emergency has caused Federal and State Governments to take drastic steps to stop its transmission, the virus is highly contagious, and sufferers can be asymptomatic. The Respondent submitted it had to react to the situation in a time poor environment, and in late February was faced with uncertain and changing information regarding the threat of COVID-19 which increased in early March 2020.
[89] The Respondent submitted it took a proactive and pragmatic stance to fulfil its obligations to assess the risk of COVID-19 and from there take measures to protect staff, and it acted in good faith. In conclusion the Respondent submitted that any adverse finding against it would be contrary to current public policy and would cause employers to be hesitant to assess the risk of COVID-19.
[90] It is clear from the evidence that Mr Knight never indicated to anyone as he previously claimed that he that he was happy to provide some but not all of the information. In the course of the hearing he made the concession for the first time that he had no issue with the first two of the three questions contained in the survey. It was not apparent from his evidence that Mr Knight wanted to know how the information would be used or how the request would be used to assess his health.
[91] It seems reasonably clear from the evidence that Mr Knight understood the reason why the information was being requested and how it would be used.
[92] I am satisfied on the basis of the evidence that the direction was both lawful and reasonable and Mr Knight refused on several occasions to follow the lawful and reasonable direction because he had incorrectly determined for himself that it was unlawful. In his oral evidence Mr Knight said he had “no dramas” with the first two questions in the survey, and it was the third question concerning future travel plans that he was concerned about. However, Mr Knight never said that in his email responses when he could have. Instead Mr Knight responded in a fairly high-handed manner maintaining his view that the direction was unlawful, and the Respondent’s view was wrong.
[93] Where there have been inconsistencies between the evidence of Mr Knight and the two witnesses for the Respondent, I prefer the evidence of the Respondent’s witnesses given there were numerous matters that Mr Knight included in his written statement, that he later accepted were incorrect during his oral evidence.
[94] Despite being warned that his continued refusal to comply with the direction may lead to termination he maintained the same position. It is true that both the warning and subsequent decision to terminate occurred on the same day, and on one view the Respondent moved too quickly to termination and it would have been open to the Respondent to afford Mr Knight more time to reconsider, or alternatively it could have directed him not to report to work rather than terminated him. However, I am satisfied from the evidence that is sufficiently clear Mr Knight had made up his mind that he was correct in his view, and any further delay was unlikely to change his position and therefore would not have changed the outcome.
[95] On the basis of the repeated refusals of a lawful and reasonable direction given by the Respondent for the purpose of attempting to fulfil its obligations under WH&S laws and to protect itself and its employees from risk, I am satisfied that Respondent had a valid reason for dismissal.
[96] Mr Knight was provided a warning letter that he responded to on the morning of 16 March, and then was provided with reasons for his dismissal on 16 March 2020 during the meeting and in the termination letter. Mr Knight did not dispute he was notified of the reasons for dismissal. I am therefore satisfied Mr Knight was notified of the reason for his dismissal.
[97] Mr Knight said that he considers that Respondent did not give genuine consideration to his concerns about the direction, prior to making its decision to dismiss him in the meeting on 16 March 2020.
[98] Mr Knight submitted that the decision to dismiss him was made prior to the meeting on 16 March as he was provided a dismissal letter at the meeting.
[99] The Respondent submitted that Mr Knight was given an opportunity to respond and did so in three emails on 12 March and 16 March 2020. It was submitted that Mr Knight made it clear he was not going to complete the survey, that it was unlawful and that he would not follow the direction to complete it. The Respondent submitted that the decision to terminate Mr Knight flowed after Mr Knight confirmed with Ms Bianca Taylor he would not comply with the lawful direction on 16 March.
[100] While it is correct that the decision to terminate was made before the meeting on 16 March, I am satisfied that Mr Knight was given an opportunity to respond to reason related to his conduct.
[101] Both Mr Knight and the Respondent submitted that he was not refused a support person.
[102] Mr Knight’s employment was not terminated for unsatisfactory performance and therefore this is a neutral consideration.
[103] The Respondent conceded that it is a large employer with a dedicated Human Resource Department which was engaged in this matter through Ms Bianca Taylor and Mr Triggs.
[104] Mr Knight submitted that given the world was on the precipice of a global pandemic and financial crisis at the time of his dismissal, the Respondent should have known that dismissal at that time would be significantly harsher on Mr Knight.
[105] The Respondent submitted that it had addressed the environment created due to the COVID-19 pandemic in its submissions.
[106] Mr Knight’s period of employment with the Respondent was not particularly lengthy at approximately 12 months.
[107] I have taken into account all of the matters that I am required to in accordance with s.387 of the Act. After weighing all the evidence as set out above, including that the Respondent had a valid reason for dismissal, the other evidence overall not supporting a conclusion that the process followed by the Respondent denied him procedural fairness, and that any degree of harshness would not outweigh the other considerations telling against Mr Knight, I have concluded that Mr Knight’s dismissal was not harsh, unjust or unreasonable. On that basis the application is dismissed.
COMMISSIONER
Appearances:
Mr Nigel Saines of Saines Legal appearing for the Applicant
Mr Aaron Potts of Morgan Alteruthemeyer Commercial Lawyers & Migration Agents appearing for the Respondent
Hearing details:
2020,
Brisbane:
June 15
Printed by authority of the Commonwealth Government Printer
<PR720477>
1 Exhibit 1.
2 Exhibit 2.
3 Exhibit 3.
4 Form F3, Q3.2, paragraph 3.
5 [2019] FWCFB 2946, 58.
6 See APPs 3.4(b), 6.2(c), 8.2(d) and 9.2(d).