The Fair Work Commission (“FWC”) has ruled that a direction to employees during COVID-19 to complete a travel survey was a reasonable and lawful direction. An application for unfair dismissal was dismissed when a recruitment consultant, refused to provide his employer with details about recent and future planned overseas travel, claiming the survey questions were in breach of privacy laws.

Background

The Applicant was employed by One Key Resources (the “Employer”) in March 2019. One Key Resources is a subsidiary of Fircroft Group – Asia Pacific (“Fircroft”) a company which operates in six countries in the Asia Pacific Region. Fircroft has a staff of 3,200 employees and a number of them are required to travel for business purposes. The employees in the Brisbane office work closely together and consultants regularly met with job seekers and clients.

On 6 March 2020 an email was sent to employees stating that:
• it wished to ensure the highest level of safety for its workers;
• in line with the Department of Health directions, certain countries had been identified as high-risk or moderate risk;
• anyone who had recently travelled to a high-risk country should quarantine for 14 days in terms of Government directions;
• employees should be aware of the symptoms of COVID-19;
• employees who had travelled to a moderate-risk country should monitor their health for the next 14 days;
• if employees feel unwell, they should see a doctor;
• in order for the Employer to adequately monitor any risk to its employees, they were required to complete the COVID-19 survey.

The COVID-19 survey asked only three questions. Employees were required to provide their name, whether they had travelled to ten high-risk or moderate-risk countries in the past five weeks and whether they had any travel plans in the near future.

Employee refused to complete the COVID-19 survey

The Applicant refused to complete the survey. He alleged that the direction to employees during COVID-19 was in breach of the Australian Privacy Principles in Schedule 1 of the Privacy Act 1988 (Cth) and so the request was both unreasonable and unlawful.
Principle 3 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.

He was issued with a warning letter on 16 March 2020 which confirmed that if the Applicant failed to comply with the lawful direction, this would result in further disciplinary action which may include termination. The Applicant dug his heels in and refused to answer the survey questions. On 16 March 2020 his employment was terminated with two weeks’ pay in lieu of notice.

Finding

The FWC agreed with the Employer that the questions in the survey related to travel information and not sensitive health information. The Commissioner recognised that the purpose of the Employer’s request was to meet its obligations under the Work Health & Safety Act 2011 (Qld) (“WH&S Act”). In terms of section 18 of the WH&S Act an employer must do what is reasonably practicable to ensure the health and safety of its workers. Even if the information was sensitive information, the Commissioner stated that it was likely the permitted general exemption would have applied. Under the permitted general exemption, consent is not necessary where the collection of sensitive information is undertaken “to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health and safety.”

In his evidence, the Applicant stated that he only objected to the third question in the survey relating to future travel plans. He had not mentioned that prior to the hearing. In fact, the Commissioner found that he had acted in a “high-handed manner” maintaining that the Employer’s view was wrong. The warning letter was received by the Applicant on the same day that the decision was made to dismiss him. However, the FWC found that while the Employer was a bit too quick to dismiss, it was clear that the Applicant had made his mind up and a delay would not have changed the outcome. The Commissioner found that the dismissal of the Applicant for misconduct was not harsh, unjust or unreasonable and his application was dismissed.

Employer takeaways
• When issuing a direction to employees during COVID-19, consider whether the request is lawful and reasonable in the circumstances. PCS can assist you with this assessment.
• Give any employee who refuses to comply an opportunity to explain their reasons for objecting.
• After issuing a warning, give the employee a reasonable opportunity to comply with the direction before proceeding to dismissal.