Employment Law & COVID

We recently successfully represented an employer in an unfair dismissal case in the Fair Work Commission (‘FWC’) see Kieran Knight v One Key resources (Mining) Pty Ltd T/A One Key Resources [2020] FWC 3324 (link to the FWC commission site – https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc3324.htm).

The employee (Mr Knight) refused the employer’s (our client’s) request to complete a survey about his previous travel and upcoming travel plans (the Survey) in order for his employer to assess its risks of COVID-19.  Despite warnings, Mr Knight refused to complete the Survey on the basis it breached his privacy and his employment was ultimately terminated.  Mr Knight brought an action against our client for unfair dismissal on the basis that the request breached his privacy and was therefore unreasonable and unlawful.  Our client successfully defended the unfair dismissal application on a number of grounds.  There are a number of important takeaways for employers from the decision:

1. what duties they have to assess their obligations under Workplace Health and Safety Laws regarding COVID-19;
2. what duties their employees owe their employer under their obligations under Workplace Health and Safety Laws COVID-19;
3. what is a lawful direction with regards to completing a Survey relating to COVID-19;
4. what is the extent of an employee’s right to privacy when asked personal information COVID-19;
5. what are the limitations to what an employer may ask; and
6. does the COVID-19 national emergency grant exceptions to the usual rules.

Kieran Knight v One Key resources (Mining) Pty Ltd T/A One Key Resources [2020] FWC 3324

Facts

Mr Knight was employed as a recruitment consultant for a large employer in an enclosed office in Brisbane CBD.  Our client became increasingly concerned with the unfolding COVID-19 pandemic and decided to take a proactive approach to assess its risks to COVID-19 in February 2020.  In early March 2020, it was decided to send out a Survey to all employees.  The Survey was sent to all employees on 6 March 2020 and asked each employee to complete an electronic Survey.  The Survey asked each employee to provide the following information:

1. their name;
2. whether they had travelled to 10 countries that were deemed high to moderate risk by the Federal Government; and
3. whether they had any plans to travel overseas in 2020 and if so where.

It is important to note that at this time there were no community transmissions (all were from overseas) and it was prior to the Government-mandated lockdowns.

Mr Knight did not complete the Survey as requested on 6 March 2020.   On 11 March 2020, a follow-up reminder email was sent stating that completion of the Survey was compulsory at which time Mr Knight told his office supervisor that he refused to complete the Survey.  Mr Knight was asked to put his concerns to HR Management, which he did by email on 12 March 2020, in which he said, amongst other things, that it was a breach of his privacy.  Mr Knight was issued a warning letter on 16 March 2020 and informed it was a lawful and reasonable request that he complete the Survey.  Mr Knight wrote back to HR Management stating that it was unlawful and a breach of his privacy; he refused to complete the Survey.  Mr Knight was sent an email by HR Management asking if he still refused to complete the Survey.  Mr Knight wrote back and further complained that it was an unlawful request and he did not complete the Survey.  HR Management decided that Mr Knight was wilfully refusing a lawful direction and putting the firm’s employees’ health and safety at risk and issued a termination letter.  Mr Knight was dismissed on 16 March 2020.

Mr Knight’s Application and Submissions to FWC

 

Essentially, Mr Knight argued the Survey amounted to a request for his personal health information and as such was defined as sensitive information under the Privacy Act 1988.  A request for sensitive personal information under the Privacy Act attracts further protection as it requires that the information can only be given with the consent of the employee.  Therefore, Mr Knight was entitled to refuse the request as it was not a lawful direction.  The recent case of Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB 2946 was relied on, whereby the dismissal of an employee for failing to provide their fingerprints was deemed to be personal sensitive information under the Privacy Act 1988 and was an unlawful direction.

Our Client’s (The Respondent’s) Response and Submissions to FWC

On our client’s behalf we submitted and it was found by the Fair Work Commission that (as quoted from the Judgment):

1. Workplace Health and Safety Obligations

The Respondent submitted that, pursuant to section 18 of the Workplace Health and Safety Act 2011 (Qld) (WH&S Act), it must do what is reasonably practical in ensuring the health and safety of its workers and, in deciding what is reasonably practical, must take into account all relevant factors including:

“(a)            the likelihood of the hazard or the risk concerned occurring; and

(b)             the degree of harm that might result from the hazard or the risk; and

(c)              what the person concerned knows, or ought reasonably to know, about –

(i)     the hazard or the risk; and

(ii)    ways to eliminate or minimise the risk, and

(d)             the availability and suitability of ways to eliminate or minimise the risk.”

[69] The Respondent submitted that, given the unfolding pandemic at the time, asking for the details of Mr Knight’s recent travel and any plans for future travel was reasonable pursuant to section 18 of the WH&S Act.

[70] The Respondent submitted that, pursuant to section 19 of the WH&S Act, the Respondent owed a primary duty of care and the provision and maintenance of a work environment without risk to health and safety.  Further, the Respondent submitted that, pursuant to section 28(c) of the WH&S Act, the Respondent’s employees had duties to:

(c)  comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health and safety at the workplace that has been notified to workers”.

[71] The Respondent submitted that it can be exposed to significant statutory penalties if it does not comply with its duties. The Respondent submitted that if it did not take proper precautions in assessing the risk of COVID-19 exposure to its employees, it would have been in breach of its duties pursuant to the WH&S Act. It says coupled with the Government guidelines regarding the current crisis, it is asserted that the survey request was lawful pursuant to the WH&S Act and the Government guidelines issued at the time.

2. Reasonable and in accordance with Government advice

[72] The Respondent submitted that the Department of Health website clearly shows that in late February/early March 2020 the number of COVID-19 cases was increasing significantly and the world was in the grip of an exponentially expanding pandemic. The Respondent submitted that at that time there was significant uncertainty as to how to deal with the issue and it was prior to the Federal and State Government mandates with regards to quarantine.

[73] The Respondent submitted that it is entitled to treat the failure to carry out a lawful and reasonable instruction that is consistent with the Employment Contract as having the employee engaging in serious misconduct given at all times the direction to complete the survey was at a reasonable and lawful direction.

3. Privacy Act – personal information, but not sensitive information

[74] The Respondent conceded that it was bound by the provisions of the Privacy Act 1988.  The Respondent conceded that it requested personal information from Mr Knight, and the collection of data would constitute personal data of Mr Knight.

[75] The Respondent denied Mr Knight’s submission that the completion of the Survey was sensitive information as defined by section 6 of the Privacy Act 1988 as sensitive information only related to information to identify the individual with regards to their racial or ethnic origin, political opinions, membership of a political association, religious beliefs or affiliations, philosophical beliefs, membership of a professional trade association, membership of a trade union, sexual preferences or practices, criminal record, health information, health genetic or biometric information relating to Mr Knight.

[76] The Respondent said a request for health information in relation to Mr Knight might have been as an example a request for medical records, however the Respondent did not ask for medical records, it says it asked for travel information to assess the risk of COVID-19 to the Respondent and its employees, not to determine whether Mr Knight had COVID-19.  The Respondent submitted that, if an employee responded that they had been to a high-risk country, they would have been told to go home and quarantine themselves so as not to put employees at risk, and if an employee’s response indicated they had been in a moderate risk country they would have been asked to take an appropriate response.  The Respondent said it was not practical to make the Survey anonymous.

[77] The Respondent submitted that as such it was not required to have the consent or permission of Mr Knight for a request for non-sensitive personal information that was lawful and reasonable, and therefore the Privacy Act 1988 creates no legislative impediment or barrier to the request for the information in the Survey as long as the request was reasonable.

[78] The Respondent submitted that the 18 March 2020 Australian Information Commissioner online communique to employers regarding employers’ rights to request information from their employees dealt directly with the COVID-19 pandemic. The advice provided the following:

“Can we collect information from employees or visitors in relation to COVID-19?

Yes, however you should collect as little information as is reasonably necessary for preventing or managing COVID-19. That includes information that the Department of Health says in needed to identify risk and implement appropriate controls to prevent or manage COVID-19, for example:

whether the individual or a close contact has been exposed to a known case of COVID-19
whether the individual has recently travelled overseas and to which countries.”

[79] The Respondent submitted its direction of 6 March 2020 and again on 11 March 2020 was clearly within the same context of this advice, adding weight to its submission that the direction was lawful and reasonable. The Respondent submitted the advice set about above from the Australian Information Commissioner in no way suggested such a request was sensitive information.

[80] The Respondent submitted the advice on the third page of the Australian Information Commissioner advice was not clear in terms of whether asking where an employee had travelled to related to the infection or the risk of exposure to the person.  The Respondent said this was distinguishable from the facts here because the Survey was directed to the risk of exposure of the Respondent itself, not the employee.

4. Even if it was sensitive personal information under the Privacy Act 1988 the COVID-19 pandemic is likely to create a ‘Permitted General Situation’ in which it is not required to get consent of the employee

[81] The Respondent submitted that in the alternative, an exception exists as described on page 4 of the advice as the COVID-19 pandemic is a permitted and general situation as defined in the Privacy Act 1988. The advice from the Information Commissioner said the following:

“Permitted general situations

The information handling requirements imposed by some APPs do not apply if a ‘permitted general situation’ exists.  This exception applies in relation to the collection, use and disclosure of sensitive information.

The most relevant permitted general situation in the current circumstances is ‘lessening or preventing a serious threat to life, health or safety of any individual, or to public health or safety.’ 6 This permitted general situation applies when an APP entity is collecting using or disclosing personal information and:

It is unreasonable or impractical to obtain the individual’s consent to the collection, use or disclosure, and

The entity reasonably believes that the collection, use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of an individual, or to public health or safety.”

[82] Section 16A of the Privacy Act 1988 defines a permitted general situation as described in the advice. The Australian Privacy Principles at APPs 3.4(b), APPs 6.2(c), APPs 8.2(d) and 9.2(d) were referenced in the Australian Information Commissioner advice and all refer to the exception applying in a permitted general situation.

[83] Having considered the submissions I prefer the Respondent’s view that the information requested by the Survey was not sensitive information as it did not request sensitive health information about Mr Knight as defined in section 6 of the Privacy Act 1988, for example it did not ask for a description of any symptoms that might indicate whether he had contracted COVID-19, and instead it requested travel information from Mr Knight.  The purpose of the request was to protect itself and its employees generally against a risk of COVID-19 and to meet its obligations under the WH&S Act, not to collect health information about Mr Knight.

[84] If that view is wrong then given the circumstances of the COVID-19 epidemic at the relevant time, it is likely the permitted general situation exemption would have applied as the circumstances would seem to fall within the meaning of a permitted general situation as defined in section 16A of the Privacy Act 1988.  The necessary criteria that it was unreasonable to obtain Mr Knight’s consent, and the Respondent reasonably believed that the collection was necessary to lessen or prevent a serious threat to life, health or safety of an individual, or to public health or safety appear to be satisfied.

5. Employment Contract contained explicit reference to the seriousness of Health and Safety directions

[85] In its submissions the Respondent then referred to clause 8 of Mr Knight’s employment contract that required him to follow all reasonable and lawful directions given to him by his employer, and to clause 12 of the employment contract that included that Mr Knight agreed to comply with all requirements of Workplace Health and Safety policies and procedures and obligations arising from legislation, and that failure to comply with relevant employer policies, procedures and legislation may result in disciplinary action including dismissal.

6. Contrary to Public Policy

[86] The Respondent submitted that the request was made in response to a national health emergency caused by a worldwide pandemic and designed purely to assess the risk of the Respondent and its employees.  It says the email of 6 March 2020 attaching the Survey clearly articulated the reasons for the information being sought and how the Respondent would deal with employees if the questions were answered in a particular way.

[87] The Respondent submitted that it was difficult to conceive how the questions could have been framed in a less personal way.  The Respondent said it has comprehensive privacy policies that Mr Knight knew, and he would have been aware that there was a low risk of his requested information being misused.

[88] The Respondent submitted that the COVID-19 national emergency has caused Federal and State Governments to take drastic steps to stop its transmission, the virus is highly contagious, and sufferers can be asymptomatic.  The Respondent submitted it had to react to the situation in a time poor environment, and in late February was faced with uncertain and changing information regarding the threat of COVID-19 which increased in early March 2020.

[89] The Respondent submitted it took a proactive and pragmatic stance to fulfil its obligations to assess the risk of COVID-19 and from there take measures to protect staff, and it acted in good faith.  In conclusion the Respondent submitted that any adverse finding against it would be contrary to current public policy and would cause employers to be hesitant to assess the risk of COVID-19.

The Fair Work Commission found that after considering these facts preferred our submissions and determined that the dismissal was not harsh, unjust or unreasonable pursuant to s385 of the Fair Work Act 2009.  On this basis the application was dismissed. 

What does this mean for your Business and your Employees?

It is important to be as proactive and reasonable to maintaining your workplace health and safety.  All States and Territories have work health and safety legislation that placed obligations on your business.  Now that a second wave of COVID-19 has suddenly struck Australia, now is as urgent as ever when dealing with COVID-19.

From this decision you should to be aware that, to engage in best practice, your business should have regard to the following:

COVID-19 Plan

1. Your business is required to have a COVID 19 plan to protect your workplace, employees and also to in order protect and comfort clients and customers – this includes against COVID 19.
2. In any COVID plan it is likely that your business will be required seek information from your employees, you should be mindful that any request for personal information:

2.1               Limited as possible so not seem intrusive or request irrelevant information;

2.2               Be careful not to ask for sensitive personal information, unless it is absolutely necessary;

2.3          Make sure you clearly inform the employee why the information is required, how it will be used and t6he consequences if you answer any questions in a particular way.

Employment Contracts

Any new employment contracts should clearly state that workplace health and safety is taken extremely seriously and failure to follow procedures or directions may result in dismissal.

Extreme Measures due to COVID-19

If you must ask for personal information under extreme circumstances (for example an employee has been diagnosed with COVID-19) and it is not practical to gain the employee’s consent, it is likely that the direction will still be lawful due to the permitted general exception contained in the Privacy Act 1988.

If you have any queries regarding how we can help your business deal with COVID 19 pandemic please feel free to contact Matt Morgan, Spencer Lieberfreund or Aaron Potts of our office.