We have received a reply to our previous anonymously submitted post, by a very generous lawyer!
Hi there. I’m a lawyer practicing in WA.
It seems to me a highly intrusive and potentially discriminatory question to ask a job seeker if they have ever been on Workers Compensation.
In my view employers (even including State Govt employers) who ask this questions as a matter for course are exceeding the limits of what should be considered an acceptable question, yet this question has become almost standard. I would very much like to see this issue eliminated from all job application forms as being potentially and (if it can be proven) actually discriminatory.
The fact that a job applicant has made a workers’ compensation claim is in all likelihood a huge negative, off-putting factor in the minds of potential employers. After all, who would want to take on a worker who has effectively “taken legal action” against a past employer. Having tarred the worker with this stigma it would be of little regard to the employer that the worker’s past injury may not be in the least relevant to their ability to perform the prospective job. Basically, having declared this history the applicant’s chances of getting the job would plummet.
It would be acceptable (and understandable) in many instances to ask an applicant if they have suffered an injury that may interfere with their ability to carry of out tasks of the prospective job. However, it is not acceptable to ask a question that would in all likelihood serve to penalise a worker for having made a workers’ compensation claim in the past.
Of course the big problem is proving that you have been passed over and missed out on the job by reason of having declared that you are an ex-workers’ compensation claimant.
I think a lawyer needs to take a claim of discrimination on this basis to the EOC or the Australian Human Rights Commission. A message certainly needs to be sent out that it is not acceptable to ask this question of a job applicant. If a person feels that they were obviously and blatantly passed over for a job, having been an excellent and well-qualified candidate for the applied-for job position this issue should, in my opinion, be tested legally.
I need to look into whether this has already been tried by other lawyers, but the fact that this odious practice exists demonstrates that long-overdue changes are needed.
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