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The employee was employed by a timber manufacturing company as a casual general hand. In 2017 fingerprint scanners were introduced for employees to use when signing in and out of shifts. The employee refused to register his fingerprints expressing concern about the control of his biometric data. Attempts were made to reassure him, however, he continued to refuse to use the new system. He was given a verbal and written warnings, and eventually dismissed from his employment.
The employee had been seeking reinstatement however so appealed the decision.
In May 2020, the FWC full bench found the Commission failed to take into account matters that reflected positively on reinstatement when making its decision.
These "significant" matters included the employee's good employment record, the fact there was no valid reason for his dismissal, the fact that in objecting to comply with the employer's requirements he didn't create any broader workplace issues, and that he remained unemployed.
In conclusion however, the FWC found that the employee's "extraordinary conduct" during the unfair dismissal proceedings showed the employee-employer relationship was irretrievably broken – thus reinstatement was not ordered.
This conduct included:
· A readiness to publicly damage the employers reputation via "unsupported allegations of theft, coercion and illegal behaviour" against the employer and MD;
· The likelihood that the employee’s continued grievance against the employer and MD would continue should he be reinstated;
· his preparedness to continue agitating the biometric (fingerprint) scanners issue, despite the FWC finding in his favour on this point.
Implementing workplace change can be difficult – especially when it comes to technological change. Seek advice early, consult with employees before and during the change and review how the implementation went. Consider a trial period first of all in order to address any employee concerns.
This case is somewhat exceptional (the applicant pursued the reinstatement matter for 2 years), but it also points out that employers need to take into account other factors (in this case the Privacy Act) when implementing change.