In a recent case Kieran Knight v One Key Resources (Mining) Pty Ltd T/A One Key Resources [2020] FWC 3324 (29 June 2020) (Knight Case), the Fair Work Commission (Commission) found that it is lawful for an employer to requesting certain information from employees to determine any workplace risk created by COVID-19.
This may seem to be common sense, but as a general rule there are some limitations on the information that an employer can require from an employee, including specifics of medical conditions in some cases.
What happened in the Knight Case?
An employee, Mr Knight, was dismissed for failing to comply with a lawful and reasonable direction from his employer, One Key Resources.
The direction was a request by Mr Knight’s employer to complete a survey, which asked employees:
- whether they had travelled to any specified countries that were (at the time of the request), considered high-risk and moderate risk for COVID-19; and
- whether they had any travel plans in the near future.
Mr Knight refused to complete the survey on the grounds that the request was for sensitive health information under the Privacy Act and that therefore the request was in breach of the Privacy Act 2009.
After being given a written warning, Mr Knight was dismissed by One Key Resources for a failure to comply with a lawful and reasonable direction.
Findings
The Commission held that the information requested in the survey was not sensitive health information.
Further, they held that it was reasonable for the employer to request travel information from its employees, particularly as the purpose of the request was to protect itself and its employees against a risk of COVID-19 and to comply with its work health & safety obligations.
Consequently, the Commission found that Mr Knight had been provided with an appropriate warning and reason for his dismissal. The Commission concluded that Mr Knight’s dismissal, for failure to comply with the lawful and reasonable direction to complete the survey, was not unfair.
What information can employers request from employees?
In reaching its decision, the Commission also considered advice to employers provided by the Office of the Australian Information Commissioner on 18 March 2020. This advice sets out that employers should only collect the minimum amount of information that is reasonably necessary to prevent or manage COVID-19.
This includes information that the Department of Health has identified as required to identify risks or implement appropriate controls to prevent or mange COVID-19, for example:
- whether the individual or a close contact has been exposed to a known case of COVID-19; and
- whether the individual has recently travelled overseas and to which countries.
Given the fast-moving nature of COVID-19 the information that best informs an employee’s ability to prevent or manage COVID-19 will change from time to time. For example, it may now be appropriate to ask employees if they have recently returned from Victoria – given the recent outbreak in that state.
Employers should remain aware of, and up to date with, state and Federal Government advice to inform any request for information from its employees.
The Knight Case shows that where information is required to comply with work health and safety obligations, and where that information relates to travel movements (and is not sensitive), employers can lawfully request this information from their employees to inform its COVID-19 risk management.
Further, steps can be taken to terminate the employment of employees who refuse to provide such reasonable information. However in doing so, a fair and reasonable process must be followed, in accordance with any policies in place, to avoid the dismissal being deemed harsh (and therefore an unfair dismissal), even though it may have been for a lawful reason.
We can provide further advice on dismissal or reasonable measures to ensure the safety of your workplace during the COVID-19 pandemic.
Please do not hesitate to contact one of our team if we can be of assistance.