In brief - FWC upholds dismissal of employee for refusing COVID-19-specific travel information
In a decision of heightened significance given recent COVID-19 outbreaks, the Fair Work Commission has upheld the dismissal of an employee for refusing to provide information of travel to COVID-19 hotspots.
Employee terminated for misconduct following refusal to provide employer with travel information
The case of Kieran Knight v One Key Resources (Mining) Pty Ltd t/a One Key Resources  FWC 3324 concerned an unfair dismissal application by an employee who was dismissed for refusing to complete a travel survey.
The travel survey was issued by One Key Resources (OKR) on 6 March 2020. It required employees to indicate whether, since 1 February 2020, they had travelled to any of ten countries then considered a high or moderate risk for COVID-19, or had any travel plans in the near future.
Mr Knight, a Brisbane-based Recruitment Consultant, refused to complete the travel survey, asserting that he was only obliged to notify his employer if he contracted COVID-19. After refusing in writing three times, including twice following a written warning that his refusal could lead to his dismissal, Mr Knight's employment was terminated for misconduct on 16 March 2020.
Was direction to provide COVID-19-related travel information lawful and reasonable?
The case ultimately turned on whether the directive to complete the travel survey was a lawful and reasonable direction, such that a refusal to comply constituted a valid reason for dismissal.
Mr Knight contended that the direction to complete the travel survey on threat of dismissal was neither lawful nor reasonable because it breached Australian Privacy Principle 3 in Schedule 1 of the Privacy Act 1988 (Cth). Specifically, he maintained that it required him to provide sensitive information without his genuine consent.
"Sensitive information" is defined by section 6 of the Privacy Act to include information or an opinion about the health of an individual. Mr Knight argued that the travel information fell within this definition because it was being collected to assess his risk of COVID-19.
While OKR accepted that the travel information was personal information that was being collected to assess the risk of exposure to COVID-19, it denied that it was sensitive information for the purposes of the Privacy Act. This was because the travel information was not information from which the state of Mr Knight's health could be determined (e.g. health records), nor was it collected to determine whether Mr Knight had contracted COVID-19.
Rather, OKR contended that the travel survey was, in the prevailing circumstances, the most practical way it could comply with its obligation under the Work Health and Safety Act 2011 (Qld) (WHS Act) to ensure, so far as is reasonably practicable, the health and safety of its workers.
In finding that the direction to complete the travel survey was a lawful and reasonable direction, Commissioner Simpson concluded that:
he preferred the view that the travel information was not sensitive information for the purposes of the Privacy Act as:
it did not include sensitive health information, such as health records or a description of any symptoms that might indicate whether Mr Knight had contracted COVID-19, and
the purpose of the request was to protect OKR and its employees against a risk of COVID-19 and meet its obligations under the WHS Act, not to collect health information about Mr Knight
alternatively, the direction to complete the travel survey fell within the "permitted general situation" exception in section 16A of the Privacy Act, which permits the collection of sensitive information without consent where it is reasonably believed necessary to lessen or prevent a serious threat to the life, health or safety of an individual, or to public health and safety, and
as such, OKR was not required to obtain Mr Knight's consent to collect the travel information.
Lessons for employers collecting employee information to manage risk of COVID-19
While this case provides support for employers who seek personal information from employees in an effort to manage their WHS obligations, it is important to keep the following in mind:
any request for personal information must be carefully designed to ensure that it only requires information which is reasonably required to manage the employer's WHS obligations, taking into account the prevailing circumstances and available guidance on how best to manage the risk
employee consent will be required when collecting information that discloses the state of an employee's health, such as health records or information on any health symptoms suffered by the employee, and
employers need comprehensive and up-to-date privacy policies that cover the collection, use and storage of personal information, including sensitive information, of employees, customers and other visitors.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.