Employer terminates employee over undisclosed injury
A local council dismissed an employee within 2 days of the commencement of his employment, for not disclosing information relating to his existing knee injury during the interview process. The employee initiated proceedings claiming that his employer discriminated against him due to his knee injury.
The question asked by the council at the interview was “Do you have any conditions which may be uncovered or likely to make you unsuitable to perform the duties required in the position?” to which the candidate answered “No”. The question should have been whether the employment could affect an injury, not the other way around. The council also failed to inform the employee, in writing, as to the nature of the employment.
Within one day of employment, the council found out that the employee had an existing WorkCover claim against his previous employer. The council subsequently terminated the employee on the basis that he made misrepresentations at the interview.
Ultimately the Court decided against the employee’s discrimination claim on the basis that the reason for the dismissal was his misrepresentation as to his fitness for the position rather than the injury itself.
Employers can learn from the council’s mistakes in failing to comply with the Accident Compensation Act during the interview process.
Recommendations
- Employers should request all employment candidates to provide details of “any pre-existing injury or disease the proposed employment could aggravate”.
- Under the Accident Compensation Act, if the candidate fails to disclose or provides false or misleading information as a response to the above request for disclosure, he or she will not be able to claim compensation involving any aggravation of the pre-existing injury or disease.
- Under the Accident Compensation Act, to obtain the benefit of the exemption, the employer must inform the employee, in writing, as to the nature of the employment.
- The request for disclosure, and advice as to the nature of the employment, should be made to a candidate prior to the making of an offer of employment, either during the application or the interview stage of the recruitment process.
- If a candidate does provide details of a pre-existing injury or disease, employers must be careful to comply with anti-discrimination legislation which prohibits the unfavourable treatment of the candidate as against other comparators.
- Employers should further incorporate, in the contract of employment, confirmation that a request for disclosure had been made. This cements the employer’s defence against prospective claims that may arise in respect of the same.
Our Workplace Relations lawyers have extensive experience in assisting its clients with complying with the most current workplace relations laws, including advice relating to WorkCover and anti-discrimination laws. Contact one of them for a confidential discussion to ensure that your business is compliant with those laws.
Authors: Charles Cody and Chao Ni
