Does failure to disclose medical condition justify termination

A recent case has highlighted the proactive responsibility employees have to disclose physical conditions or treatments that may impact on their ability to discharge their duties safely.

Case Review

In this case, the worker, a police officer, claimed unfair dismissal when was terminated for “acting dishonestly and without integrity” after it came to light that he had failed to disclose that he suffered from a significant health issue that potentially affected his ability to safely perform his role.

The worker was employed in 2014 after moving to Australia from the UK.  In 2018 his colleagues reported that he disclosed that he had been taking strong pain relief medications for an injured back and shoulder, an injury he sustained during surgery in the UK and was suing the NHS for.

In the case against the NHS in the UK the worker noted that his injury prevented him from properly discharging his firearm, properly driving a police vehicle or physically handling suspects.

In rejecting the unfair dismissal claim the the Cheif Commissioner noted that the worker could not claim to be unfit to work as a police officer in the UK and at the same time have been truthful in his recruitment assessment in Australia, when he answered no to questions asking if he had any musculoskeletal conditions or health problems that restricted his daily activities or had undergone any orthopaedic surgery in the past.  The same recruitment process required the worker to disclose any disability, illness or injury sustained before his commencement date

“[The worker] was aware of his compromised ability to properly perform the duties of a police officer, but not only failed to report it to the [employer], he actively sought to conceal these hazards,” they said.

Learnings for all businesses

“This case highlights the need for all businesses to have a clear understanding of the inherent physical requirements of the role, to communicate those requriements to applicants and incumbents and to ensure that applicants and incumbents understand it is their duty under the safety laws to report any illness, injury, disability or medication that could impact on the safe discharge of their duties”, explains ACAPMAs Elisha Radwanowski.

“The idea of doing a ‘medical clearance’ or doctors visit before an offer is made, for retail workers in a small business context particularly, can feel like overkill, but business appropriate applicant questionnaires and position descriptions are options for businesses of all sizes”, added Elisha.

“What is often overlooked is the need to remind workers of the requirement to disclose impairment to the business once employment has commenced.  Annual reminders to staff about their duty to disclose is something that every business can do, as is requiring the annual completion of worker questionnaires.  This is something that ensure staff are prompted to think about their health and the requirements of the role regularly, and to engage with the business on any impairments or restrictions, before an injury or incident occurs”, concludes Eisha.