Worker lies about medical history, can they be sacked?

discrimination

Further to R’s recent comment, here is a little more information about pre-existing injuries/illnesses and job interviews. Unfortunately, many injured workers know how hard it can be to find a new job after having suffered a workplace injury/illness. It actually feels like we are labelled with a sticker on our foreheads stating “contagious” or something like that! Really! A prospective employer can seek information during an interview provided the questions are relevant to the ability of the job applicant to perform the inherent requirements of the job.

Worker lies about medical history, can they be sacked?

OK, let’s say you are an employer and run a large nursery shop. Let’s say you recently recruited a new worker who, during the interview did not indicate they suffered from any medical condition (injury/illness) which would prevent them from undertaking the tasks of the nursery job. During the interview you (the company/employer) told the worker that s/he would be required to lift plant pots and ornaments, some heavy ones, and the worker was asked whether there was any phsyical reason why they wouldn’t be able to lift those plant pots and ornaments. All the worker said during the interview was that, sure, they could do this job.

Let’s say the worker was successfully interviewed and hired by the nursery. A few weeks into the job, a nursery customer complains that the worker refused to help her carry plant pots and  small (5 kilo or less) ornaments to her car. The worker had told the unhappy customer that s/he had a bad back because of a  previous work-related accident which he suffered at his previous job.

Now the Nursery y considers lifting fplant pots and ornamentsas a very important part of the customer service they provide. What now? Are there valid grounds for terminating the new worker because s/he did not disclose his/her pre-existing injury and/or medical functional restrictions? And, is questioning the worker about his/her medical history during an interview considered an ïnvasion of privacy”? Can an employer ask about a new worker’s workers compensation history during an interview? And can an employer tsack a worker if the employer discovered later that the worker lied about their medical condition / pre-existing injury to obtain a (new) job?

Discussion

Interviewing the new worker

Discrimination of an injured/ill worker

In order for an employer to avoid appearing discriminatory, they can ask the worker  a question alonhg the lines of “Do you have a pre-existing injury or medical condition or disability that would prevent you from performing the inherent requirements of the job?”This is better than asking straight out “Have you had a previous work injury or workcover claim”?

If the worker anwers yes during the interview, then the employer can ask additional questions such as what the condition is they suffer, whether they have current restrictions, whether those medical restrictions will affect the worker’s ability to undertake the job. The employer should also try to find ways to accommodate the worker’s condition, within reason.

If an employer were to ask only questions about workers compensation (workcover) history, they may miss a non-workcover related injury/restrictions. So where the worker may honestly answer a question whether or not they have had a workcover claim (or workcover injury) they may still have a pre-existing injury or disability or restriction which may preclude them from performing the job but was not caused by a workcover injury (workers comp claim).

Privacy concerns about disclosure of medical history

Employers are actulally allowed by law to seek further information or investigate if they can show that the information sought relates to the inherent parts of the job. (The High Court found it is allowed to have regard to the health and safety of others when considering job requirements.)

Any investigation and further information seeking needs to  protect the privacy rights of the job applicant and any examinations or tests should be carried out by qualified medical personnel. (See for example this case )

Providing false information on interview

Providing false information in a pre-employment medical assessment may in some ciases constitute serious misconduct and warrant dismissal.

Wilful and misleading statements by a job applicant needs to be judged in view of how important the material is to the making of the job contract (whether it affected the making of a newjob  contract ).

Discrimination – real case example

An employer withdrew a job offer to a job applicant on the grounds that the job applicant had various medical conditions that prevented him/her from performing the inhererent and physical duties of the job, was found not guilty of unlawful disability discrimination. Read case.

Unlawful dismissal – Adverse Action

The Fair Work Act states an employer must not take ‘adverse action’ against a worker, or a prospective worker (eg job applicant), on discriminatory grounds. Adverse action by an employer includes dismissal, and also includes action by a prospective employer against a prospective worker if the prospective employer refuses to employ a prospective worker, or discriminates against a prospective worker with respect to the terms and conditions of the worker’s employment.

 

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