Over the last few weeks we have been repeatedly saying that you must:
- Assess the risk of COVID at work
- Develop a plan, and
- Give directions in accordance with that plan.
Each state and territory in Australia requires employers to prepare a plan. The plan, if it complies with the intention of the various tools that exists, describes specific behaviour to protect the employees and others. A refusal to comply with the plan is serious misconduct. Then along comes Knight v One Key to prove the point.
One Key, and its parent company, provide recruitment, placement and labour hire services. Many of its employees travelled pre-COVID throughout the world (both for work and recreation). One Key gave instructions around quarantine and self-care and to monitor employee health and risk required each employee to fill out a travel survey. Mr Knight refused for privacy reasons, was warned and ultimately dismissed for failing to comply with a lawful and reasonable direction. He relied on the decision of Lee v Wood where fingerprinting scanning was held to be sensitive information and a direction to submit to scanning was not lawful or reasonable (breach of privacy law therefore unreasonable).
However the FWC held that personal health information, under the Privacy Act, is subject to over-riding Australian law like safety law. Safety law requires the monitoring of an employee’s health. Mr Knight lost his case the dismissal was confirmed. This is great law at work.
