An electrician who refused to use the new facial scanning sign-in system provided by his employer, KME services, was fired for "serious misconduct". Stock photo / Getty Images
An electrician who refused to use the new facial scanning sign-in system provided by his employer, KME services, was fired for "serious misconduct". Stock photo / Getty Images
An electrician who was fired after refusing to use a facial scanning sign-in system has won more than $23,000 from his former employer.
Tim Fensom worked for eight months in 2018 as a leading hand electrician for KME Services NZ, a contractor on a building project at Christchurch Hospital Hagley.
But that October KME dismissed him for "serious misconduct" after he twice refused to clock in using a facial scan, citing concerns about how his data would be stored and used.
He has now been awarded $23,286 by the Employment Relations Authority for unjustified dismissal, hurt and humiliation.
In September 2018 KME employees at the construction site were sent a memo that the paper sign-in system was being replaced by biometric data and facial scanning technology.
The system, called Timecloud, would "show KME's commitment to workers' health and safety", the memo said. The scanner "will help us track employees and subcontractors in case of emergencies or site evacuation" in the 62,000sq m building.
Timecloud was to be rolled out within a fortnight, but it was delayed for several weeks while the company answered questions from employees about why it was needed and how their biometric data would be protected.
On October 11 Fensom emailed managing director Tim Lane, saying he fully agreed with the need for accurate timekeeping but was disappointed at how the change was communicated, and was uncomfortable with the use of biometric scans. A swipe card system would be "less invasive", he suggested.
He had been told he would get a "first and final warning" the first day he did not comply, and be removed from site on the second day.
Lane replied that was incorrect, but said refusing to follow health and safety policies would breach Fensom's contract and that could lead to a warning letter.
Employees had already had a chance to raise concerns, Lane said.
Fensom was on holiday when the Timecloud system launched. When he returned on October 29 he told his supervisor he would not use the face scanning system, and signed in on paper instead.
Midafternoon, his supervisor gave him a warning letter, with Lane's name attached. The following morning, Fensom again refused to use the facial recognition system. His supervisor immediately gave him a pre-written termination letter, signed by Lane.
It said his employment had been ended for "serious misconduct", and he was escorted out of the building.
KME failed 'fair and reasonable' employer test
Fensom applied to the Employment Relations Authority for personal grievances for unjustified disadvantage and unjustified dismissal.
KME also did not give Fensom a disciplinary meeting or a chance to get advice or support - which was in breach of his contract - and thus both the warning letter and firing were unjustified, the ERA said.
Fensom also found his firing humiliating, the ERA said.
"He was embarrassed having to tell friends and family about his circumstances and, as a result of a lack of income while he looked for work, having to borrow money from them."
KME has been ordered to pay Fensom $11,286, minus tax, for lost wages and $12,000 as compensation for "humiliation and injury to his feelings" by January 31.
The Christchurch Hospital acute services building while still under construction. Photo / Supplied
Worker consultation "failed at the first hurdle"
The ERA said there were "significant problems" with the way KME had brought in the new system.
The company claimed to have consulted workers, as required by law, but the ERA found that consultation was a sham. Lane had purchased the Timecloud system in August, before asking employees for their input.
Employees should be consulted about change affecting them in a way that was "a reality, not a charade", the ERA said. KME's consultation had failed "at the first hurdle".
While Fensom and his colleagues were legally required to follow their employer's health and safety policies, "those obligations did not trump ... KME's [obligations] to first consult them before introducing such policies".
There was also doubt whether KME's health and safety rationale for bringing in face scanning was valid.
The company claimed safety in an emergency was its main concern. While this was a legitimate purpose, workers were not required to clock out when they went to Hagley Park for lunch - suggesting the system would not accurately pinpoint who was on site, the ERA said.
Lane admitted to the ERA the real benefits of the system were to reduce time fraud, because workers could not sign in their colleagues, and for ease of administration.
Privacy concerns not properly addressed
The ERA found KME's answers to privacy concerns were "inadequate and to some extent misleading" because Timecloud could change the privacy policy at any time.
Workers were told biometric data would be encrypted and would be deleted when the worker's employment with KME ended. Users could use only their first name to protect their privacy.
Users consented to their information being collected and disclosed in accordance with the privacy policy, but that Timecloud could change that policy without notice.
Timecloud would not disclose personal information to any third party "except where disclosure relates to the purposes for which the information was collected … and as agreed in the Terms of Use" - but those terms of use were not provided.
