Australia: Employers: Are your directions lawful and reasonable?

The obligation of an employee to follow a lawful and reasonable direction from their employer lies at the heart of the employment relationship. It follows from the 'master and servant' relationship from which modern employment derives and has been considered extensively by the courts.

Examples of directions which the courts have considered to fall within the "lawful and reasonable" definition include: a direction to answer questions honestly in respect of employment related matters; directing an employee to leave the premises; a direction to not use a particular supplier; a direction to a manager to dismiss another employee.

With advances in technology, workplaces are changing at a rapid rate and the manner in which work is performed is also changing. Business are looking for ways to improve performance and efficiency and embracing technological advances is one way this is occurring. However, this can result in unexpected consequences.

In Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB 2946, the Full Bench of the Fair Work Commission determined that a direction given to an employee to provide his fingerprint – his biometric data – was not a lawful and reasonable direction from the employer, and consequently the employee's refusal to comply with the new company policy was not a valid reason for his dismissal.


Jeremy Lee was employed as a casual General Hand at the Superior Wood Pty Ltd sawmill in Imbil, Queensland for a little over three years. In late 2017 Superior Wood announced the introduction of fingerprint scanners which were to be used for recording employee start and finishing times and linked directly to payroll. Employees were advised in late October 2017 that they were required to register their fingerprints in the new system and from that point on, start using fingerprint scanners to register their attendance at work. Mr Lee was directed to attend a meeting to register his fingerprints on 1 November 2017. He attended the meeting but did not provide his fingerprints. He continued to work and used the existing sign in/out book to manually record his attendance.

At a meeting with Superior Wood management held the following day, Mr Lee outlined his concerns, particularly in relation to the control of his biometric data and the inability of Superior Wood to guarantee that no third party will have access to, or use of, his data once it was electronically stored. Mr Lee subsequently reiterated these concerns to Superior Wood in writing.

After a seven week trial, the fingerprint scanners were formally introduced on 21 December 2017. Superior Wood developed a policy on the use of the scanners which was introduced on 2 January 2018. Mr Lee maintained his refusal and continued to use the manual sign in/out process.

Mr Lee was issued with a verbal warning for refusing to use the scanners on 9 January 2018. This was followed with formal written warnings on 11 January and 17 January. In these written warnings, Mr Lee was cautioned that continual refusal to use the fingerprint scanner, and thereby failure to comply with the policy, would result in the termination of his employment.

After further attempts to try to resolve the issue to a mutual satisfaction failed, Mr Lee's employment was terminated on 12 February 2018.

First Instance decision

Following his termination, Mr Lee made an unfair dismissal application to the Fair Work Commission.

After a hearing, The Commissioner presiding over the matter dismissed the application for unfair dismissal and ruled that while Mr Lee was entitled to withhold his consent, in doing so he failed to meet a reasonable request to implement a fair and reasonable workplace policy. As such, there was a valid reason for the dismissal and that it was not harsh, unjust or unreasonable.

That decision was appealed to the Full Bench of the Fair Work Commission.

Full Bench decision

The Full Bench of the Fair Work Commission heard the appeal from the first instance decision in March 2019 and handed down its decision on 1 May 2019.

The Commission noted that at the heart of this matter was Mr Lee's claim of ownership of the biometric data contained within his fingerprint. The Commission confirmed that his fingerprint was "sensitive and personal information" as defined under the Privacy Act 1988, and that Superior Wood was not entitled to require he provide that information. As such, his dismissal based on a refusal to provide it was invalid.

The Commission confirmed that the policy itself did not form part of Mr Lee's employment contract. It stated that as the policy came into existence well after his employment started and since there was no evidence that Mr Lee agreed to have the terms of his employment altered so as to incorporate the policy's terms into it, it did not form part of his employment contract.

Therefore, the question to be determined is whether the direction to comply with the policy and use the fingerprint scanners to sign in and out of work each day was a reasonable and lawful direction.

For a decision to dismiss an employee to be considered valid, it must be based on a reason that is sound, defensible or well founded, and not capricious, fanciful, spiteful or prejudiced.

In this particular case for the fingerprint scanning technology to be used, employees had to provide their fingerprint data to Superior Wood for electronic storage. The terms of the Privacy Act require that consent must be given by the employee before collection of this data can occur. The Privacy Act requires this consent in order to protect individual privacy from unlawful or arbitrary interference.

The Commission determined that the Privacy Act – and the Privacy Principles thereunder – applied to Superior Wood in connection to the collection of the fingerprint data. Therefore, consent to the data collection by the employees was required.

Mr Lee was directed by Secure Wood to consent to the collection of the biometric data (ie his fingerprint) and he did not consent as he was directed. The Commission found that the direction to submit to the collection of his fingerprint data in circumstances where he did not consent to that collection was not a lawful direction. The Commission further stated that any 'consent' that Mr Lee might have given once he was told that he faced disciplinary action (including dismissal) would likely have been cancelled by the threat and would not have been genuine consent.

Mr Lee's appeal was upheld. The matter has been remitted to the Commissioner for a determination on remedy.

Take home messages

There are a number of take home messages for employers from this decision.

Directing an employee to provide consent is not likely to be a lawful or reasonable direction. Inherent in the right to consent is the counteracting right to refuse consent. As the Commission noted, any direction to provide consent, particularly when done under the threat of disciplinary action, is unlawful and the consent which follows is not genuine consent.

As technologies such as fingerprint scanners become increasingly common, it is imperative that employers comply with the terms of the Privacy Act 1988, and the associated Privacy Principles.

For employers seeking to implement a new policy it is important to keep in mind that the terms of that policy do not necessarily or automatically form part of the employment contracts of your employees. As such, a breach of any new policy does not automatically equate to a breach of employment contract.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions