An employer can validly terminate an employee who withholds information or fails to make an honest disclosure about a medical condition which affects their ability to perform their role safely. The failure to honestly disclose is a continuing obligation from pre-employment representations of fitness for work and throughout employment.
In the Fair Work Commission unfair dismissal hearing of Soans v KDR Victoria Pty Ltd t/a Yarra Trams, Mr Soans suffered a stroke but failed to advise his employer and mislead two doctors who examined him to assess his fitness for duty following a period of personal leave. Under his employer’s National Safety Standards, a stroke victim was required to wait at least 3 months post-stroke before returning to driving duties. The fact that he had a stroke rendered him unfit to work and unsafe to drive a tram. Yarra Trams investigated allegations of Mr Soans’ non-disclosure, but he was not truthful during the investigation. Yarra Trams terminated Mr Soans for serious misconduct for:
- failing to disclose complete and accurate medical information to the assessing doctors, and
- for his lack of honesty during their investigation.
The termination was upheld by the Commission.
At Common Law, employees have a duty of good faith and fidelity which requires them to be honest in their employment. Providing false and misleading statements is a breach of the duty of good faith and fidelity, amounting to serious misconduct.
Under Safety Law, employees must inform their employer of any temporary or ongoing medical condition which affects their ability to perform their work safely, or to perform the inherent requirements of their role.
A failure in these duties can provide valid grounds for termination. But the process is not so simple and needs careful crafting.
For further assistance please contact Kim McLagan on 0447 455 189 or at kim.mclagan@fcwlawyers.com.au
