Posted by Julia Eastoe	on Jul 2, 2020
In Kieran Knight v One Key resources (Mining) Pty Ltd T/A One Key Resources [2020] FWC 3324, the Fair Work Commission (FWC) upheld the dismissal of an employee (Mr Knight) who refused his employer's (Employer) lawful and reasonable request to complete a survey about recent and upcoming travel plans in light of COVID 19 risks.
Mr Knight had been employed since 20 March 2019 as a recruitment consultant based in the Employer's Brisbane office. One Key Resources is a subsidiary of Fircroft Group – Asia Pacific, operating in 6 countries providing recruitment, placement and labour hire services in the oil, gas and mining industry in the Asia Pacific region.
On 6 March 2020, the Employer sent all employees in the organisation an email and link to complete a survey relating to their recent travel history and travel plans in light of the increasing COVID 19 risk in Australia. The survey requested the following information:
Employee's name
Travel history for the period 1 February 2020 to 6 March 2020 in relation to 10 foreign countries
Upcoming travel plans for 2020, including dates and destinations.
The 10 foreign countries identified in the survey were replicated from the Australian Government's directions at the time relating to high-risk and moderate risk countries for COVID 19. Mr Knight refused to complete the survey, and was subsequently the only employee, out of approximately 3,200 employees who refused to do so.
On 11 March, the Employer sent a reminder to all employees and directed employees who had not yet completed the survey, to do so by close of business 12 March 2020. Mr Knight refused to complete the survey.
On 12 March 2020, Mr Knight sent an email to HR explaining why he was refusing to complete the survey. Among his reasons for refusing to do so, he claimed that his employer did not need to know his future travel plans, and that he had not recently traveled (as evidenced by any annual leave requests his employer would have had).
On 16 March 2020, the Employer gave Mr Knight a written warning letter and directed him to complete the survey as it was a lawful and reasonable
direction. In the letter, it set out that his failure to complete the survey will result in further disciplinary action which may include termination of his employment.
Following a meeting with the Employer where he received the written warning letter, Mr Knight sent an email to HR asking for specifics as to why it was a lawful and reasonable direction for him to complete the survey. The Employer determined that Mr Knight was unlikely to complete the survey and made the decision to terminate his employment on the same date for failure to follow a lawful and reasonable direction. The Employer terminated his employment immediately and provided him two weeks' payment in lieu of notice.
Mr Knight's position
Mr Knight contended that his Employer's request for information was in breach of the Australian Privacy Principles and that the request to complete the survey was not a lawful nor reasonable direction. Mr Knight argued that the information requested was sensitive information pursuant to s.6 of the Privacy Act 1988 (Cth) (Privacy Act) and that he did not have to provide the information requested.
Employer's position
The Employer argued that the information requested was not sensitive information as it related only to an employee's travel information in order to assess the risk of COVID 19 to the organisation and its employees and that the request was in accordance with the Australian Government guidelines at the time. The Employer contended that while it did not accept the information requested amounted to sensitive information, if it did, the COVID 19 pandemic would be considered a permitted general situation under s.16A of the Privacy Act. The permitted general situation exception that may have applied is because the personal information collected by the Employer was to protect the health or safety of any individual.
The Employer explained that if an employee within the organisation had
nswered yes to having recently been in any of the identified as high-risk or moderate risk countries, that it would have directed the employee to quarantine themselves at home so as to not put other employees at risk.
The Employer also claimed that pursuant to ss.18 and 19 of the Workplace Health and Safety Act 2011 (QLD) (WH&S Act), they had to do what is reasonably practical to ensure the health and safety of its workers and had a primary duty of care to provide and maintain a work environment without risk to health and safety.
The FWC found that the purpose of the Employer requesting employees to complete the survey was to protect itself and its employees generally against the risk of COVID 19 and to meet its obligations under the WH&S Act.
The FWC also held that even if the information requested was considered sensitive information, the permitted general situation exemption under s.16A of the Privacy Act would have applied at the time due to the circumstances of the COVID 19 pandemic and that the direction for Mr Knight to complete the survey was lawful and reasonable.
While the FWC acknowledged that the warning letter and written notice of termination occurred on the same day, it was a valid reason for dismissal given Mr Knight's refusal to complete the survey and unlikelihood of him complying with the direction.
The FWC noted that although there were alternative options open to the
mployer, including giving Mr Knight time to reconsider his position or directing him not to attend the workplace, it was unlikely that Mr Knight was going to change his position in relation to completing the survey. As such the FWC upheld his dismissal.
Considerations for employers
If you are requesting information from your employees in relation to COVID 19 (particularly as the physical workplace begins to re-open), it is important to:
ensure you collect only that information which is reasonably necessary;
be aware that information about the health of a person (eg information about symptoms, treatment or general health) will be sensitive information pursuant to privacy laws;
consider whether the information requested is sensitive information and if so, is there a permitted general situation exemption that applies at the time the information is requested.
If you are unsure as to what information you can lawfully request in relation to your employees, please contact us on (03) 8621 4501.