Worker fired for declining a face scan awarded $23,200

Christchurch electrician Tim Fensom has been awarded $23,200 after he was fired for refusing to use a face scanning system. Fensom worked for construction company KME Services for eight months as a lead electrician during the construction of Christchurch's new hospital before he was fired on October 30, 2018, the Employment Relations Authority said in its determination. KME managing director Tim Lane replaced the company's paper-based timesheets with a biometric system that scanned workers' faces when they arrived and left the hospital construction site after two other subcontracting companies started using it.

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Christchurch electrician Tim Fensom has been awarded $23,200 after he was fired for declining to use a face scanning system he raised concerns about.
When Fensom raised concerns he was told to use the system or receive a warning for breaching KME's health and safety policy.

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STACY SQUIRES/STUFF

Tim Fensom worked as a electrician during the construction of Christchurch's new hospital before he was fired on October 30, 2018

Workers were informed of the biometric system in an email on September 6, 2018, though KME bought the system in July.

Lane said the compulsory use of the face scanner would replace paper-based time sheets and also was a commitment to workers' health and safety, tracking them in case of emergencies and evacuations.

The system was supposed to be rolled out in September but it was delayed till mid October while the company took steps to answer workers' concerns about the biometric data.

During this time workers were told KME was "still consulting" with employees, that it could introduce the policy under its employment agreement and the system provider, Timecloud, could amend or update the policy "with or without notice to users".

Fensom raised his concerns about the system in an email to Lane on October 11, telling his employer that

he was disappointed by KME's lack of communication about its reasons for changing the system. He said he was not comfortable using it.

Monitoring time-keeping and any emergency evacuation of the site could be achieved by a swipe card which was "less invasive", Fensom said.

Lane told him workers had been given an opportunity to have their concerns addressed over the previous two months and the system was going to be implemented in mid-October.

Fensom was on a two week holiday while the system was being rolled out.

When he returned on October 29, Fensom declined to use the face scanner, and instead signed in on a paper timesheet and carried on with his day.

That day Fensom was given a formal warning letter for not following KME's health and safety policies.

​The next day when he refused again, Fensom was fired for serious misconduct.

The ERA said the warning and termination letters were unjustified as Fensom was not given an opportunity to explain his reasons for refusing to use the biometric system.

It said KME failed to consult its employees about alternatives to paper-based timesheets before it decided to purchase the Timecloud facial scanning software.

KME’s attempts to answer concerns about potential privacy issues were "inadequate and to some extent misleading", the ERA found.

It also found Fensom had not refused to follow instruction, rather he wanted to discuss the implications of the system.

The authority doubted KME's health and safety rationale because workers did not need to use the system if they were going away on lunch breaks.

The authority said Lane admitted Timecloud's real benefits were to reduce time fraud.

Fensom said the dismissal was embarrassing and he had had to borrow money to get by.

KME was ordered to pay Fensom $12,000 as compensation for humiliation and injury to feelings and $11,286 in lost wages.

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