Covid-19 Trumps Privacy
Posted on August 11, 2020
In a recent decision the Fair Work Commission (FWC) has found that an employer was justified in terminating an employee who refused to provide information as to his travel history.
In Knight v One Key Resources (Mining) Pty Ltd [2020]FWC3324, the employer requested information from the employee as to whether he had travelled to any of the 10 countries which were at the time considered a high or moderate risk for Covid-19, or had any plans to travel in the future.
The employee refused to provide the information asserting that he only needed to notify his employer if he actually contracted Covid-19.
The employee refused to provide the information on three occasions, including twice following a written warning which advised him that his continued refusal could lead to the termination of his employment.
The employee argued that the direction to complete the travel survey on threat of dismissal required him to disclose “sensitive information” which breached the Privacy Act 1988 (Cth).
Under the Privacy Act “sensitive information” is defined to include information about the health of an individual. The Privacy Act contains exemptions to the collection of sensitive information, where it is necessary to lessen or prevent a serious threat to the life, health or safety of an individual, or to the public health and safety.
The FWC concluded that the travel information was not “sensitive information” for the purposes of the Privacy Act or alternatively that the direction to complete the survey fell within an exemption which permitted the collection of sensitive information.
The case serves as a timely warning of the need to keep in mind that there are rules constraining the collection and use of personal information from employees.
Please contact the Lynch Meyer workplace relations team for advice on employment and privacy issues.
